The United States Supreme Court granted certiorari (I was unable to find a copy of the Order as of the drafting of this article) in the case Abbott v. Abbott, 542 F.3d 1081. This interesting case involves the interpretation of the Hague Convention on International Child Abduction for purposes of whether a ‘Ne Exeat’ confers a right of custody for purposes of the Hague Convention. A Ne Exeat clause is the generic term used by Courts and Lawyers for a clause in custody agreements that prohibits one parent from removing the child from the child’s home country without the other parent’s consent. Apparently the Abbott’s had such a clause in their custody and conservatorship order. The Hague Convention (the child custody portion) requires that once a child has been removed from his or her home country that to be eligible for return back to the home country the parent requesting the return must have “rights of custody’ which include ‘the right to determine the child’s place of residence’ Mr. Abbott argues the Ne Exeat clause in his custody order grants such a right. Ms. Abbott disagrees. The Federal Court of Appeals are split on this issue the U.S. Supreme Court granted review.

Here are the background facts of the Abbott’s:

Timothy Abbott, a British citizen, married respondent Jacquelyn Vaye Abbott, a U.S. citizen, in England in 1992. Their son A.J. was born 1995. Sometime in 1998, the Abbotts moved to Chile, where Mr. Abbott had accepted a new job.

The Abbott’s separated in March 2003. Litigation in the Chilean family courts produced various court orders. The first, entered in January 2004, granted Mr. Abbott “direct and regular” visitation rights. The second, entered in November 2004, left daily care and control of A.J. with the Ms. Abbott. The third, entered in February 2005, expanded Mr. Abbott’s visitation rights to include a full month of summer vacation. The fourth, entered on January 13, 2004, prohibited both parents from removing A.J. from Chile without written authorization from the court. In addition to the Chilean family court ne exeat order, petitioner also held a ne exeat right under a Chilean statute that requires authorization from a parent having visitation rights before the other parent may take a child out of Chile.

In July 2005, Mr. Abbott sought an order from Chilean courts that would have expanded his rights with respect to his son. Shortly thereafter, in August 2005, Ms. Abbott took A.J. out of Chile without Mr. Abbott’s knowledge or the court’s consent. Mr. Abbott hired a private investigator and, four months after the removal, located his son in Texas.

Mr. Abbott filed suit in federal district court in Texas, seeking to have his son returned to Chile pursuant to the Hague Convention. The district court denied Mr. Abbott’s request. The court concluded that the removal was not “wrongful” within the meaning of the Hague Convention because Mr. Abbott’s ne exeat right did not constitute a right of custody under the Convention.

On appeal, the Fifth Circuit affirmed. The Fifth Circuit acknowledged that the other Federal Circuit Court were divided;

- the Second Circuit held that ne exeat doesn’t create a custody right. Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001)

- the Eleventh Circuit held that ne exeat did create a custody right. Furnes v. Reeves, 362 F.3d 702 (11th Cir.), cert. denied, 543 U.S. 978 (2004)

My guess is that the Supreme’s will hold it does not, by itself, create a custody right. The Chilean custody order clearly gives the mother the superior custody right – the right to determine the primary residence of the child. The Hague Convention specifically differentiates between ‘custody rights’ and ‘visitation rights” My sense is that unlike in the United States where our laws are designed to create and encourage a post-separation coparenting environment, that most of the other countries opt for a custody arrangement whereby one parent has the majority of the parenting rights and the noncustodial parent’s rights are relegated inferior to those of the custodial parent. If you take the literal meaning of the Hague Convention on this issue I think it is a stretch to hold otherwise. Presumably, the other signatory countries, besides the United States, signed and ratified the treaty because it’s congruent with their ideas and beliefs about post divorce and post separation child rearing. To hold otherwise would not only confer rights to Mr. Abbott he specifically did not have, it could have the unintended effect of having signatory countries deratify the treaty.