Abbott v. Abbott

The Supreme Court has agreed to look into how American authorities handle the Hague Convention on child abduction, which prevents one parent from taking a child to other countries without the other parent's consent.

Timothy Abbott, a British citizen, and Jacquelyn Abbott, a U.S. citizen, married in England and later had a son in Hawaii.

In 2002, all three lived together in Chile. In March 2003, the Abbotts separated and they litigated in the Chilean family courts where Jacquelyn Abbott was ultimately awarded custody and Timothy Abbott was granted visitation rights.

The Chilean courts entered four separate orders. The first, entered in January 2004, provided visitation rights to the father. The second, entered in November 2004, required the parties and their son to undergo private therapy, denied the father's request for custody rights, and granted all custodial rights to the mother. The third, entered in February 2005, expanded the father's visitation rights, including visitation for an entire month of summer vacation.

In January 2004, at Jacquelyn Abbott's request, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent (the "ne exeat order"). The following year, Jacquelyn Abbott removed her son from Chile without Timothy Abbott's consent.

At the time, motions were pending before the Chilean family court -- although the court had previously awarded all custody rights to Jacquelyn Abbott in its November 2004 order. Timothy Abbott hired a private detective who found the mother and son living in Texas. Timothy Abbott filed suit in district court in Texas, seeking an order requiring that the child be returned to Chile pursuant to the Hague Convention.

The court denied return of the boy to Chile, finding that the removal did not constitute a breach of the father's "rights of custody" as defined by the Hague Convention. Last September, a three-judge panel on the Fifth Circuit affirmed, holding that only a parent who has custodial rights can invoke the treaty to try to get the minor child returned.

In asking the Supreme Court to review the case, attorneys for Timothy Abbott argue that "the conclusion reached by a majority of U.S. courts of appeals directly conflicts with the conclusions of the vast majority of our sister signatories." The brief also notes that "the question presented recurs frequently and in practice is often determinative of parental rights involving children who are taken from their home countries."

Solicitor General Elena Kagan also filed a friend-of-the-court brief on behalf of the government that urged the court to take the case.

Question presented: Whether a ne exeat clause confers a "right of custody" within the meaning of the Hague Convention on International Child Abduction.

The Supreme Court ruled today on how American authorities should handle the Hague Convention on child abduction, which prevents one parent from taking a child to other countries without the other parent's consent.

Timothy Abbott, a British citizen, and Jacquelyn Abbott, a U.S. citizen, married in England and later had a son in Hawaii.

In 2002, all three lived together in Chile. In March 2003, the Abbotts separated and they litigated in the Chilean family courts where Jacquelyn Abbott was ultimately awarded custody and Timothy Abbott was granted visitation rights.

The Chilean courts entered four separate orders. The first, entered in January 2004, provided visitation rights to the father. The second, entered in November 2004, required the parties and their son to undergo private therapy, denied the father's request for custody rights, and granted all custodial rights to the mother. The third, entered in February 2005, expanded the father's visitation rights, including visitation for an entire month of summer vacation.

In January 2004, at Jacquelyn Abbott's request, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent (the "ne exeat order"). The following year, Jacquelyn Abbott removed her son from Chile without Timothy Abbott's consent.

At the time, motions were pending before the Chilean family court -- although the court had previously awarded all custody rights to Jacquelyn Abbott in its November 2004 order. Timothy Abbott hired a private detective who found the mother and son living in Texas. Timothy Abbott filed suit in district court in Texas, seeking an order requiring that the child be returned to Chile pursuant to the Hague Convention.

The court denied return of the boy to Chile, finding that the removal did not constitute a breach of the father's "rights of custody" as defined by the Hague Convention. Last September, a three-judge panel on the Fifth Circuit affirmed, holding that only a parent who has custodial rights can invoke the treaty to try to get the minor child returned.

In asking the Supreme Court to review the case, attorneys for Timothy Abbott argue that "the conclusion reached by a majority of U.S. courts of appeals directly conflicts with the conclusions of the vast majority of our sister signatories." The brief also notes that "the question presented recurs frequently and in practice is often determinative of parental rights involving children who are taken from their home countries."

Solicitor General and Supreme Court judicial nominee Elena Kagan also filed a friend-of-the-court brief on behalf of the government that urged the court to take the case.

On May 17, 2010, the Supreme Court reversed and remanded the lower court order in an opinion by Justice Anthony Kennedy.

"The Con­vention defines 'rights of custody,' and it is that definition
that a court must consult. This uniform, text-based ap­proach ensures international consistency in interpreting the Convention," Kennedy wrote. "It forecloses courts from relying on defi­nitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrange­ ments in other countries or in different legal traditions, including the civil-law tradition. And, in any case, our own legal system has adopted conceptions of custody that accord with the Convention’s broad definition."

Retiring Justice John Paul Stevens dissented, joined by Justices Clarence Thomas and Stephen Breyer.

Question presented: Whether a ne exeat clause confers a "right of custody" within the meaning of the Hague Convention on International Child Abduction.