Abbott v. Abbott (2009)
- Docket
- 08-645
- Decided
- 2009-01-01
Summary
Question: Does a clause that prohibits one parent from removing a child from a country without the other parent's consent confer a "right of custody" within the meaning of the Hague Convention on International Child Abduction? Conclusion: Yes. The Supreme Court held that a parent has a right of custody under the Hague Convention on International Child Abduction when the parent retains a ne exeat right (the right to restrain someone from leaving a country). Here, Mr. Abbott retained such a right. With Justice Anthony M. Kennedy writing for the majority, the Court first recognized that the Convention applies because the child in question is under 16 and was a habitual resident of Chile. (Chile and the U.S. are signatories to the Convention.) The Court then reasoned that the Convention's text, the U.S. State Department's views, signatory states' court orders, and the Convention's purposes all suggest that Mr. Abbott retained a ne exeat right under Article 49 of the Convention. Because Mr. Abbott possessed direct and regular visitation rights with his child, his ne exeat followed. The Court noted that Mr. Abbott's ne exeat right gave him a right of custody to his child, so long as Ms. Abbott could not find an exception in the Convention precluding the exercise of Mr. Abbott's right to custody. Justice John Paul Stevens, joined by Justices Clarence Thomas and Stephen G. Breyer, dissented. He argued that Mr. Abbott merely possessed a limited veto power over Ms. Abbott's ability take their son from Chile, not a custody right. He went on to explain that using the Convention's powerful return remedy under these circumstances is contrary to the Convention's "text and purpose."