U.S. Supreme Court on International Custody Disputes

In a case that was closely watched by courts, and family and international law practitioners, the Supreme Court, last Monday, found that an order prohibiting the removal of a child from a country without the noncustodial parent's consent is enforceable under the Hague Convention on the Civil Aspects of International Child Abduction , a Law.com reported yesterday morning.

The case, Abbott v. Abbott , was a dispute between the American mother and British father of a 15-year-old boy. Married in Hawaii in 1992, the couple moved to Chile but later began having marital problems. When they separated in 2003, the article said, the Chilean courts granted the mother daily care and control of their son and awarded the father regular visitation rights. Chilean law also conferred on the father a ne exeat right to consent before his son could be taken out of Chile. Unable to find work in Chile, the mother left Chile with their son and returned to the United States. The father found them in Texas and moved to enforce the ne exeat order.

At issue was whether a "ne exeat" right – the right of one parent to veto the other's removal of their child from the country – amounts to a "right of custody" within the meaning of the Hague Convention. Black's Law Dictionary defines "ne exeat" from the Latin meaning "that he not depart; being 1). A writ restraining a person from leaving the republic, specifically an equitable writ ordering the person to whom it is addressed not to leave the jurisdiction of the court or state."

Federal courts have disagreed on whether the ne exeat clause conferred a "right of custody" or a lesser "right of access" under the treaty. In the Abbott case, the 5th U.S. Circuit Court of Appeals ruled it was only a "right of access." That court followed a 2nd Circuit decision, Croll v. Croll (2000), in which then-Judge Sonia Sotomayor had dissented. The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority, while the Eleventh Circuit again followed the reasoning of the Croll dissent.

The Supreme Court, in its syllabus Monday, said, "Chilean law determines the content of Mr. Abbott's right, while the Convention's text and structure resolve whether that right is a "righ[t] of custody….

"That a ne exeat right does not fit within traditional physical custody notions is beside the point because the Convention's definition of 'rights of custody' controls. This uniform, text-based approach ensures international consistency in interpreting the Convention, foreclosing courts from relying on local usage to undermine recognition of custodial arrangements in other countries and under other legal traditions. In any case, this country has adopted modern conceptions of custody e.g., joint legal custody, that accord with the Convention’s broad definition."

Justice Stevens dissented, joined by Justices Thomas and Breyer.