OK, hopefully this is the last time I’ll have to write on this subject. That’s because the U.S. Supreme Court seems to have finally decided the issue. Here’s the opinion in Abbott v. Abbott written by Justice Kennedy who’s joined by five other justices for a 6-3 majority (Leagle, 5/17/10). Significantly, new Associate Justice Sonia Sotomayor voted with the majority. That’s not a surprise given that her dissent in Croll v. Croll, decided by a three-judge panel of the Second Circuit Court of Appeals argued for the exact outcome the Supreme Court reached in Abbott.
The case is about international parental kidnapping. More specifically, it’s about the effect of what’s called a ne exeat clause in a child custody order. A ne exeat clause says that the custodial parent can’t remove the child outside the court’s jurisdiction without the consent of either the court or the non-custodial parent. The question raised in Abbott and in the previous Croll case, is whether a ne exeat clause in a child custody order constitutes a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction. If it does, and a custodial parent takes the child out of the country against the non-custodial parent’s wishes, the non-custodial parent can use the Convention to force the child’s return. If it doesn’t, the non-custodial parent has no recourse.
The court in Abbott held that a ne exeat clause does constitute a right of custody and therefore, a non-custodial parent can ask a court to return the child to him/her pursuant to the terms of the Convention.
Timothy Abbott is a citizen of the United Kingdom and Jacquelyn Abbott is a citizen of the United States. They were living in Chile when they divorced. The Chilean court gave primary custody to Jacquelyn and liberal visitation to Timothy. The court’s order included a ne exeat clause, but Jacquelyn violated that clause when she moved with their son to Austin, Texas. Timothy hired a private investigator who located her there. He filed suit in Texas requesting that the court order his son returned to him in Chile. The court refused holding that the ne exeat clause does not create a right of custody, and the Fifth Circuit Court of Appeals upheld that refusal.
That ruling agreed with the interpretations of other circuits, but it disagreed with others that hold that the ne exeat clause does create a right of custody and therefore a right of return under the Hague treaty to which both the U.S. and Chile are signatories. Because the circuits interpret the treaty differently, the Supreme Court agreed to rule on the case and resolve the dispute.
It did so by ruling that the ne exeat clause in the Abbott’s custody order created a custodial interest on Timothy’s part that was enforceable under the Hague Convention. Sotomayor had said the same thing in Croll and that is now the law of the United States. It’s also the majority position around the world. Justice Kennedy cited rulings by the high courts of a variety of other countries that hold the same thing although there are a few others that do not.
The only possible weak spot in the court’s decision is that a court that’s determined to reach a contrary result could claim that it’s all based on Chilean law. Kennedy placed some emphasis on the fact that Chilean law itself clearly considers visitation rights to include the joint right to decide the child’s country of residence, and that right, under the Convention, is a right of custody. So Chilean law itself underpins the U.S. Supreme Court’s decision in Abbott. That means that, in a case that doesn’t involve parties or court orders from Chile, a party could claim the Abbott decision doesn’t apply.
But that’s a dubious proposition. Kennedy’s opinion is broader than that. He writes that,
This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue.
and
This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contracting states.
and
Adopting the view that the Convention provides a return remedy for violations of ne exeat rights accords with its objects and purposes.
In short, Kennedy and the other five justices in the majority don’t think their ruling is limited to the facts of the case. So anyone who claims that this opinion is confined to cases originating in Chile will have to deal with the court’s plain language, plain meaning and plain intent.
This should put an end to arguments in the U.S. about the effect of ne exeat clauses in international kidnapping cases.
The bottom line? Make sure you have a ne exeat clause in your divorce decree and custody orders. Chances are you’ll never need it, but if you do, it may save a lifetime of missing your child.
Thanks to Ned for the heads-up.