ABBOTT v. ABBOTT

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Case Basics
Docket No. 
08-645
Petitioner 
Timothy Mark Cameron Abbott
Respondent 
Jacquelyn Vaye Abbott
Advocates
(for the petitioner)
(Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae)
Term:
Facts of the Case 

Timothy Abbott, a British citizen, and Jacquelyn Abbott, an American citizen, litigated their divorce in the Chilean courts. Mrs. Abbott was awarded custody of their son, while Mr. Abbott was awarded visitation rights. At Mrs. Abbott's request, the Chilean court entered an order prohibiting the child's removal from Chile by either the father or mother without express mutual consent. One year later, Mrs. Abbott moved the child from Chile without Mr. Abbott's consent. Upon location of the child in Texas, Mr. Abbott requested an order in a Texas federal district court that the child be returned to Chile pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the order holding that the child's removal did not constitute a breach of the father's "rights of custody" as defined by the Hague convention.

On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed, holding that the Chilean court's order and Chilean statute that required father's consent before the child could leave Chile did not give a non-custodial father "rights of custody" within the meaning of the Hague Convention. The court stated that Mr. Abbott merely possessed the rights of "access to the child."

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 
Decision: 6 votes for Abbott, 3 vote(s) against
Legal provision: International Child Abduction Remedies Act

No. 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."

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ABBOTT v. ABBOTT . The Oyez Project at IIT Chicago-Kent College of Law. 31 July 2014. <http://www.oyez.org/cases/2000-2009/2009/2009_08_645%23expanded-player>.
ABBOTT v. ABBOTT , The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2000-2009/2009/2009_08_645%23expanded-player (last visited July 31, 2014).
"ABBOTT v. ABBOTT ," The Oyez Project at IIT Chicago-Kent College of Law, accessed July 31, 2014, http://www.oyez.org/cases/2000-2009/2009/2009_08_645%23expanded-player.