Abbott v. Abbott

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Argued January 12, 2010.

Docket: 08-645

Issue: Whether a ne exeat clause confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction. [ Howe & Russell represents the petitioner.]

Contents

Briefs and Documents

Decision

REVERSED AND REMANDED in a a 6-3 decision with an opinion written by Justice Kennedy. Justice Stevens dissented, joined by Justice Thomas and Breyer.

Oral Argument

Transcript (January 12, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Recap

Josh Friedman originally wrote the following for SCOTUSblog:

In an opinion by Justice Kennedy that was joined by five other Justices, the Court held on May 17 that a parent’s ne exeat right confers upon that parent a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction. In so doing, the Court reversed the contrary opinions of the courts below and remanded the case for further proceedings regarding the return of A.J.A., the child at the heart of this litigation.

Recognizing that the parties agreed that the Convention applies to this suit, the Court explained that the question at issue in this case was “whether A.J.A. was ‘wrongfully removed’ from Chile . . . in violation of a right of custody.” The Court explained that the text of the Convention, the views of United States Department of State, decisions by foreign courts addressing the meaning of “rights of custody,” and the purpose of the Convention all lead to the conclusion that A.J.A. was indeed “wrongfully removed.”

The Court began its analysis with the Convention’s text, which was in turn shaped by the scope of Mr. Abbott’s rights under Chilean law. Thus, interpreting Chilean law, the Court concluded that Mr. Abbott’s ne exeat right is best construed as a “joint right of custody” as defined under the Convention. Specifically, the Court emphasized that Mr. Abbott’s ne exeat right conferred upon him shared authority to “determine the child’s place of residence,” which falls within the scope of a parent’s “right of custody” under the Convention. Accordingly, Mr. Abbott’s ne exeat right was enforceable pursuant to Hague Convention procedures.

Moreover, the Court explained, the only remedy for the violation of a ne exeat right is an order of return. Any other result, it emphasized, would “render the Convention meaningless in many cases where it is most needed.” In the Court ‘s eyes, its conclusion was further bolstered by the persuasive views of the State Department “that ne exeat rights are rights of custody” – which, the Court continued, are significant under the longstanding rule “that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’”

The Court found support in the jurisprudence of foreign contracting states as well. To this end, the Court concluded that there was “broad acceptance of the rule that ne exeat rights are rights of custody.” Moreover, the Court observed, there is also a growing consensus among scholars on this issue.

Finally, the Court concluded that the objects and purposes of the Convention are best served by providing a return remedy for violations of ne exeat rights. Specifically, a return remedy serves the Convention’s end of ensuring that custody disputes are resolved in the courts of a child’s habitual residence. Indeed, the Court observed, a contrary ruling might actually encourage child abduction for the purposes of forum shopping.

Finally, the Court emphasized that although a ne exeat right does indeed constitute a “right of custody” for purposes of the Convention, the Convention’s return remedy is “not automatic” if the abducting parent can establish that an exception to the Convention applies. Thus, it remanded the case for ”further proceedings consistent with this opinion.”

Justice Stevens, joined by Justices Thomas and Breyer, dissented. These Justices disputed the significance of Mr. Abbott’s ne exeat right, which they characterized as a much more limited “visitation right.” Based on their view that the right merely provided Mr. Abbott with the authority to restrict his son’s travel, they would hold that Mr. Abbott was not entitled to rely upon the Convention’s “powerful return remedy.”

Oral Argument Recap

Erin Miller originally wrote the following for SCOTUSblog.

During oral argument in Abbott v. Abbott, the Court grappled with complex questions – about the nature of rights, the best interests of children and families, and the interpretation of international treaties – that broke down traditional alignments on the Court. If the argument had a common theme, it was understanding the reasoning behind the Hague Convention on the Civil Aspects of International Child Abduction.

The case is a dispute between respondent Jacquelyn Abbott, who moved her son from Chile to the United States, and her estranged husband, petitioner Timothy Abbott, who wants the child returned to Chile. Mr. Abbott contends that a Chilean law granting him a “ne exeat” right – the right of one parent to veto the other’s removal of their child from the country – amounts to a “right of custody” within the meaning of the Hague Convention. If Mr. Abbott is correct, then the Convention requires that the child be returned to Chile.

Amy Howe, counsel for Mr. Abbott, began by arguing that the purpose of the Hague Convention was to ensure that the fate of a child is decided by a court in his country of “habitual residence,” not by one parent’s choice to flee beyond that court’s jurisdiction.

But one scenario itched at Justice Breyer that he raised repeatedly during the argument: What if the custodial parent – presumably the one with whom the child would be better off – is the one who moves the child abroad and the non-custodial parent is the one requesting return? In particular, what if that non-custodial parent is akin to a “Frankenstein’s monster” whom the family-law judge denied any rights over the child? If the Convention grants such a parent custody rights, Breyer insisted he could not see the “humane purpose” behind it.

By the end of the petitioner’s argument, Chief Justice Roberts and Justices Sotomayor and Ginsburg, at least, seemed satisfied that, in such exceptional circumstances, the Convention would allow a parent to escape abroad with their child. To this end, Justice Ginsburg asked Howe whether a mother who has fled the country with her child and fears for the child’s welfare if it is returned to the father has any recourse. Howe described two options for the mother, one ex post, the other ex ante: (1) she could seek a defense under Article 13(b) of the Convention – which exempts cases when the child faces a “grave risk of physical or psychological harm” upon return – or (2) she could ask a Chilean court for permission to leave the country without the father’s consent.

Assistant to the Solicitor General Ginger Anders, arguing for the United States as an amicus in support of Mr. Abbott, stressed that the Convention presumes the “country of habitual residence” is best placed to decide the good of the child. Both she and Howe frankly admitted that, under this standard, the Convention would usually require the return of children removed from a country without the consent of both parents. However, Anders said, the Convention leaves some flexibility: it says nothing about which parent the child must live with, or which country the child will spend the rest of its life in. Justice Sotomayor seemed quite taken by this angle on the case.

Going back to the issue of exceptional cases, Justice Breyer fretted that the “grave risk” of harm would not encompass risks to the mother’s physical or psychological health. He wondered whether it was humane to require a mother with an advanced degree to stay in a country where she cannot find work in order to live with her child. Anders offered that distress of the mother would probably harm the child’s psychological health and would therefore, secondarily, qualify as an Article 13(b) defense.

Karl Hays, arguing on behalf of Mrs. Abbott, asserted that a right of custody is distinct from a right of access, or visitation. Mr. Abbott was awarded visitation by the Chilean court, but his additional statutory ne exeat power does not amount to a new right for him. Rather, it amounts to a limitation on the exercise of Mrs. Abbott’s pre-existing custody right. Justice Kennedy immediately deemed this an “artificial approach,” because either minimal visitation rights or complete custody rights could be construed as a mere “limitation” on the right of the other parent.

Justices across the bench questioned Hays’s contention that, when the Convention drafters wrote “right of custody,” they had in mind the right to determine the child’s place of residence – i.e., the address at which the child lives. Justice Alito – implying that the country a child lives in is a critical part of its residence – asked a series of questions probing why the right to determine the address of the child is a right of custody but the power to determine its nationality is not. Finally, he just asked, “Which is more important, determining the house in which the child is going to live or determining the country in which the child is going to live?”

Hays insisted that a parent left behind could resort to the legal system of the country where the child was taken – using laws such as the Uniform Child Custody Jurisdiction and Enforcement Act in the United States – to seek enforcement of their existing rights of access or custody. Justice Scalia dismissed that argument, scoffing, “If these local remedies were effective, we wouldn’t have a treaty.”

The main concern Justice Scalia raised throughout the argument was the need for “uniform interpretation” of the Convention. Scalia’s question about how foreign courts had construed the Convention’s phrase “right of custody” sparked a bench-wide effort to tally the courts that had ruled one way or the other.

In the closing minutes of the argument, Justice Kennedy asked Hays why Mrs. Abbott had not availed herself of the alternative Howe earlier suggested: simply asking the Chilean court to leave with her son. His argument time running out, Hays replied simply, “I don’t know.”

Pre-Argument Articles

Jonathan Eisenman of Akin Gump originally wrote the following for SCOTUSblog.

On the heels of the recent return from Brazil of Sean Goldman, the victim of a heavily publicized international child abduction, the Court is set to hear argument in Abbott v. Abbott, a case arising out of the alleged abduction of a child referred to as “A.J.A.” from Chile to the United States. The question in the case is whether one parent’s “ne exeat right”–the right to prevent the child’s departure from the country–is a “right of custody” the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”), so that a child taken in violation of that right must be returned. If the ne exeat clause gives A.J.A.’s father a right of custody under the Convention, then the United States must return A.J.A. to Chile.

Background

Timothy Abbott, a British citizen, married Jacquelyn Vaye Abbott in Hawaii in 1992. Their son, A.J.A., was born in Hawaii in 1995. The family moved to Chile; while there, Mr. and Mrs. Abbott separated. Litigation over custody of A.J.A. began in Chilean family court, with Mrs. Abbott initially awarded daily care and control over A.J.A. Mr. Abbott could visit A.J.A. every other weekend, for one evening a week, and for one month of A.J.A.’s summer vacation.

On January 13, 2004, the Chilean family court entered an order decreeing the “ne exeat” of the child. In addition, upon the couple’s separation, a Chilean statute granted Mr. Abbot a ne exeat right as a parent with visitation rights. His decision could be overridden, however, if a court deemed it unreasonable.

In July 2005, Mr. Abbott petitioned the Chilean family court to expand his parental rights to A.J.A. A hearing was scheduled for early September; however, in late August, Mrs. Abbott removed A.J.A. to Texas without Mr. Abbott’s consent.

Mr. Abbott brought suit in federal court seeking A.J.A.’s return to Chile under the Hague Convention, which subject to certain exceptions requires the return of a child when the child is removed from his country of “habitual residence,” “in breach of rights of custody . . . attributed under the law of the State in which the child was habitually resident immediately before [his] removal.” The Convention further requires that the breached right be one that was actually exercised at the time of the child’s removal, or one that would have been exercised, had the child not been removed.

The district court declined to order A.J.A.’s return, finding that the ne exeat order did not give Mr. Abbott a right of custody within the meaning of the Convention. The Fifth Circuit affirmed.

Petition for Certiorari

In finding that a ne exeat right does not provide a right of custody, the Fifth Circuit aligned itself with the Second, Fourth, and Ninth Circuits. Notably, in the Second Circuit—the first court of appeals to opine on the question—now-Justice Sotomayor dissented, and would have held that a ne exeat order does provide a right of custody under the Convention. The Eleventh Circuit also took the position that a ne exeat order provides a right of custody.

The Court sought the view of the Solicitor General on whether to grant Mr. Abbott’s petition; the Solicitor General recommended a grant and subsequently filed an amicus brief in support of Mr. Abbott. The SG’s office also sought, and received, permission to participate in tomorrow’s oral argument. Assistant Solicitor General Ginger Anders will divide time with Mr. Abbott’s counsel, Amy Howe.

Merits

At its core, Mr. Abbott’s argument is about the Convention’s function: If the Hague Convention is meant to prevent international child abduction by a non-custodial parent, it makes little sense to interpret it as not requiring a child’s return when one parent violates a ne exeat order, frustrating the process of adjudicating custody in the first place.

According to Mr. Abbott, a sensible interpretation of the Convention requires viewing a ne exeat order as vesting both parents with a shared right of custody: the right to refuse, within reason, the other parent’s request to remove the child from his place of habitual residence. Mr. Abbott furthers that argument by observing that the Convention defines “rights of custody” as including, “in particular, the right to determine the child’s residence.” Because a ne exeat order gives a parent the right to veto moving the child out of his country of habitual residence, Mr. Abbott argues, the order confers a right of custody within the very definition provided by the Convention—a right he would have exercised had he known of Mrs. Abbott’s intention to remove A.J.A. from Chile.

Mr. Abbott contends that should the Court find otherwise, it would make the United States a haven for parents seeking to evade custody determinations in the country of their children’s habitual residence. Such parents could remove their children to the United States in violation of a ne exeat order without fear that doing so would trigger the Convention’s requirement that the United States return the child.

Mr. Abbott concludes by observing that other countries courts’, after the Convention’s adoption, have treated a ne exeat order as creating a right of custody under the Convention; moreover, there is evidence from the Convention’s drafting history that a ne exeat order was intended by the drafters to be implicitly within the scope of the term “right of custody.”

The Solicitor General’s brief in support of Mr. Abbott brings to bear the State Department’s view, as the agency whose Office of Children’s Issues is the United States’ Central Authority under the Convention, that a ne exeat order confers a right of custody on Mr. Abbott.

In response, Mrs. Abbott argues that at most, a ne exeat order protects Mr. Abbott’s right of access, i.e., his visitation rights, to A.J.A. Under the Convention the violation of a right of access, unlike the violation of a right of custody, does not give rise to the obligation that a signatory return a child to his place of habitual residence. In contrast to Mr. Abbott’s functional argument, Mrs. Abbott argues that Mr. Abbott has no formal right of custody under Chilean law—he only had visitation rights when Mrs. Abbott left Chile—and that the ne exeat order serves only to protect the Chilean courts’ jurisdiction over A.J.A., not to confer a right on Mr. Abbott. This point is affirmed, according to Mrs. Abbott, by the fact that any objection to A.J.A.’s removal could be overridden by the court that issued the ne exeat order.

Attacking Mr. Abbott’s argument that his right to prevent A.J.A. from leaving Chile is a right to determine A.J.A’s place of residence, Mrs. Abbott contends that the right to determine A.J.A.’s place of residence cannot be divorced from other criteria associated with a right of custody, e.g., the responsibility for providing the child with food, shelter, clothing, guidance, healthcare, and an education. As A.J.A.’s parent with physical custody, it was Mrs. Abbott’s obligation to provide those things, giving her an unshared right of custody over A.J.A. Moreover, Mrs. Abbott interprets “place of residence” to mean A.J.A.’s immediate living quarters, not his country of residence; it follows, per Mrs. Abbott, that the Convention’s definition of “right of custody” turns “particularly” on the right to designate a child’s immediate living quarters. Accordingly whether Mr. Abbott had some kind of right under the ne exeat order is irrelevant, because it was not a right to determine A.J.A.’s habitual place of residence—his immediate living quarters—and thus not a right of custody.

Mrs. Abbott then turns her attention to the Convention’s drafting, observing its travaux preparatoires (“preparatory works”) indicate that the treaty’s purpose is to protect custody rights under a signatory’s law. Because, Mrs. Abbott argues, a ne exeat order does not create a custody right under Chilean law—it merely serves to protect other rights—the Convention did not contemplate the return of a child removed from a country in violation of a ne exeat order.

Further, Mrs. Abbott claims that the travaux contemplate rights that are “actually exercised” to mean those exercised in the day-to-day care of the child, for which Mrs. Abbott was responsible. Mrs. Abbott then argues that a proposal to explicitly extend the Convention’s return-requirement to ne exeat orders was rejected at the Convention’s negotiation, and that there is no dispositive quantum of legal authority from other signatories to show that a ne exeat order is widely seen as within the scope of the return-requirement. Supporting this point, Mrs. Abbott points to an observation that the original Convention would preserve custody rights, and was not meant to protect any signatory’s jurisdiction over a child. However, when the Convention was revisited in 1996 , a “framework” meant to protect signatories’ jurisdiction over a child was included—but neither the United States nor Chile signed on to the 1996 Convention. Mrs. Abbott reads this as an affirmative rejection by both countries of the view that ne exeat orders provide rights of custody under the Convention.

Grant Write-Up

Amy Howe originally wrote the following for SCOTUSblog.

If the Court were to grant certiorari in Abbott, it would have before it – albeit indirectly – yet another of Judge Sotomayor’s opinions. The Second Circuit was the first court of appeals to consider this question, in Croll v. Croll, 229 F.3d 133 (2000), cert. denied, 534 U.S. 949 (2001). In that case, the panel majority held that a ne exeat clause was not a right of custody for purposes of the Hague Convention. Judge Sotomayor wrote a dissenting opinion indicating that she would have held – as the Solicitor General now argues – that the ne exeat clause constitutes a right of custody.

In Abbott, the Court will construe the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. Under the Convention, a parent whose child has been abducted has the right to have his child returned to the child’s country of habitual residence if the child has been removed in violation of his rights of custody. The Convention further defines “rights of custody” to include “the right to determine the child’s place of residence.” At issue in this case is whether a ne exeat clause – which prohibits one parent from removing a child from the country without the other parent’s consent – confers a “right of custody” for purposes of the Hague Convention. The Fifth Circuit joined the Second, Fourth, and Ninth Circuits in holding that the ne exeat clause does not constitute a right of custody; by contrast, the Eleventh Circuit and the majority of foreign courts which have considered the issue have held that it does. Judge Sonia Sotomayor dissented from the Second Circuit’s decision on the issue in Croll v. Croll; she would also have held that the ne exeat clause does confer a right of custody.

We filed the petition for certiorari in November 2008; in January 2009, the Court invited the Solicitor General to file a brief expressing the views of the United States. In late May, the Solicitor General filed a brief urging the Court to grant certiorari and reverse. Our co-counsel in the case is Adair Dyer of Austin, Texas. We received help along the way from five students from the Stanford Law School Supreme Court Litigation Clinic – David Schwartz, JP Schnapper-Casteras, Dan Matro, Rakesh Kilaru, and Martine Cicconi – as well as three students from our Supreme Court Litigation Class at Harvard Law School – Andrew Corkhill, Eric Nguyen, and Jane Wang.

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