Abbott v. Abbott
560 U.S. 1, 176 L. Ed. 2d 789, 2010 U.S. LEXIS 3880 (2010)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A parent's ne exeat right—the authority to grant or deny consent before the other parent can remove a child from a country—constitutes a "right of custody" under the Hague Convention on the Civil Aspects of International Child Abduction. A breach of this right is a "wrongful removal" that triggers the Convention's mandatory return remedy.
Facts:
- Timothy Abbott, a British citizen, and Jacquelyn Vaye Abbott, a U.S. citizen, were married and had a son, A.J.A., who was born in Hawaii in 1995.
- The family moved to La Serena, Chile, in 2002 for Mr. Abbott's career.
- The parents separated in March 2003 while living in Chile.
- A Chilean court granted Ms. Abbott daily care and control of the child, while awarding Mr. Abbott "direct and regular" visitation rights.
- Under Chilean law (Minors Law 16,618), the grant of visitation rights automatically conferred upon Mr. Abbott a ne exeat right, meaning his consent was required before Ms. Abbott could take their son out of Chile.
- In August 2005, Ms. Abbott removed the child from Chile and relocated to Texas without Mr. Abbott's consent.
Procedural Posture:
- Mr. Abbott filed an action in the U.S. District Court for the Western District of Texas, petitioning for his son's return to Chile under the Hague Convention and the International Child Abduction Remedies Act (ICARA).
- After a bench trial, the District Court denied Mr. Abbott's petition, holding that his ne exeat right did not constitute a "right of custody" under the Convention.
- Mr. Abbott, as appellant, appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.
- The Fifth Circuit affirmed the trial court's judgment, agreeing that the father's ne exeat right was merely a "veto right" and not a right of custody.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on this issue.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a parent's ne exeat right to consent before a child is removed from a country constitute a "right of custody" within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, thereby making the child's removal without that consent a "wrongful removal" subject to the Convention's return remedy?
Opinions:
Majority - Justice Kennedy
Yes, a parent's ne exeat right to consent before a child is removed from a country constitutes a "right of custody" under the Hague Convention. The Convention defines "rights of custody" to include "rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence." A ne exeat right falls under this definition because it allows a parent to "set bounds or limits to" the child's residence, effectively ensuring the child remains within the country. Furthermore, the decision of a child's country of residence is a critical component of their care, as it determines their culture, language, and identity. The Court's interpretation is supported by the U.S. State Department, an emerging international consensus among other signatory nations, and the Convention's central purpose of deterring parents from unilaterally removing children to seek a more favorable legal forum.
Dissenting - Justice Stevens
No, a ne exeat right is not a "right of custody" under the Hague Convention. This right is merely a veto power over international travel and does not confer any affirmative rights relating to the daily care of the child, such as decisions about education, healthcare, or religion. The majority's broad interpretation erases the Convention's careful distinction between "rights of custody" and "rights of access" (visitation), which are protected by different, lesser remedies. The dissent argues that the ne exeat right is ancillary to visitation and is intended to protect rights of access, not to create a joint custody arrangement. By treating this limited veto power as a full custody right, the Court's decision incorrectly triggers the powerful return remedy and converts every noncustodial parent with visitation rights in Chile into a joint custodian for the Convention's purposes.
Analysis:
This decision significantly broadens the interpretation of "rights of custody" under the Hague Convention to include what is essentially a negative right—the power to veto a child's removal from a country. It establishes a strong precedent that strengthens the position of non-custodial parents who possess such ne exeat rights, making the remedy of return more widely available and deterring unilateral international relocations by custodial parents. The ruling harmonizes U.S. law with the majority view of other signatory nations, promoting a uniform international application of the treaty. However, it may also restrict the mobility of custodial parents and could lead to litigation over whether various parental consent rights qualify as rights of custody.
