Invitation Brief in No. 08-645, Abbott v. Abbott: Will the Supreme Court (Indirectly) Review Another Sotomayor Opinion?
Today the government is filing its brief in No. 08-645, Abbott v. Abbott, in which the Court called for the views of the Solicitor General in January. At issue in the case, in which we represent petitioner Timothy Abbott, is whether a ne exeat clause "“ which prohibits one parent from removing a child from the country without the other parent's consent "“ constitutes a "right of custody" for purposes of the Hague Convention on International Child Abduction. In her brief, the Solicitor General opines that the Fifth Circuit erred in holding that a ne exeat clause is not a right of custody, and that certiorari should be granted.
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.
The Court is likely to consider the case at its June 25 conference; if cert. is granted, the case would probably be argued in the fall "“ by which time Judge Sotomayor, if confirmed, could be on the Court herself.