Court holds that ne exeat rights are enforceable “rights of custody” under the Hague Convention

By Anna Christensen
on May 18, 2010 at 4:07 pm

Below, Josh Friedman of Akin Gump recaps the Court’s opinion, handed down yesterday, in Abbott v. Abbott (08-645).  [DISCLOSURE: Akin Gump and Howe & Russell represented petitioner Timothy Abbott, but Josh did not work on the case.]  Jonathan Eisenman’s preview of oral arguments in the case is available here, and Erin Miller’s recap of the proceedings is available here.  Check the Abbott v. Abbott SCOTUSwiki page for additional information.

In an opinion by Justice Kennedy that was joined by five other Justices, the Court yesterday held 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.”