Abbott v. Abbott
Encyclopedia
Abbott v. Abbott, No. 08-645 (2010), was a decision by the Supreme Court of the United States holding that a parent's ne exeat right is a "right to custody" under the Hague Convention on the Civil Aspects of International Child Abduction
and the International Child Abduction Remedies Act.
for Mr. Abbott's work with a U.S. Observatory, where the parents separated due to domestic violence issues and during the first abduction of A.J.A. by Mr. Abbott child custody
proceedings regarding the care and custody of A.J.A. were instituted by Mr. Abbott. Mrs. Abbott was awarded full care and custody of A.J.A, and Mr. Abbott was granted weekend visitation and partial summer possession of the child. Upon separation, standard Chilean law provided Mr. Abbott, the non-custodial parent of A.J.A., a ne exeate right to prevent A.J.A. from being removed from Chile by Mrs. Abbott without Mr. Abbott's prior consent, which could not be unreasonably withheld under Chilean law as determined by the court.
During the first abduction of A.J.A. by Mr. Abbott, on January 13, 2004, the Chilean family court entered a decree
with a ne exeat order prohibiting either parent from removing the child from Chile at the request of Mrs. Abbott.
The U.S. Observatory refused to provide proof of Mr. Abbott's salary to the Chilean courts, making it virtually impossible to obtain child or spousal support in Chile. Fortunately for Mrs. Abbott and A.J.A., Mr. Abbott's legal counsel had filed a document listing what was generally considered to be a reasonable percentage of his salary for support, while arguing it was too much, and the Chilean court used this document to set a support amount. Mr. Abbott litigated this decision all the way to the Chilean Supreme Court to try and keep from having to pay child support, but lost at the highest levels in Chile. From March of 2003 to August of 2005, Mr. Abbott refused to pay child or spousal support and ignored orders by the Chilean court to do so. He was arrested for non-payment of child support and made an arrangement to pay the back amounts, but reneged on that very quickly. Mrs. Abbott was unable to work in Chile due to the visa she was given by the U.S. Observatory as an accompanying wife of an astronomer.
In July 2005, Mr. Abbott sought to modify the court's visitation order and expand his visitation rights. After the second abduction of A.J.A. by Mr. Abbott and before a scheduled hearing on Mr. Abbott's petition could be held, Mrs. Abbott removed A.J.A. to Texas without Mr. Abbott's prior consent. Mrs. Abbott did not request permission from the Chilean court to take the child out of Chile or to override Mr. Abbott's ne exeat right.
Mr. Abbott brought suit in Federal District Court seeking an order compelling A.J.A's return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction.
briefs were filed by the Permanent Bureau of the Hague Conference on Private International Laws , United States of America , the State of California , the National Center for Missing and Exploited Children
, S&W International ChildFind Program, the Massachusetts Society for the Prevention of Cruelty to Children
, Justice for Children, Pathways for Children, Children’s Law Center of Los Angeles, and Emerge .
In support of Ms. Abbott's position, amicus curiae briefs were filed by Delegates Lawrence H. Stotter and Matti Savolainen on the Drafting and Negotiating of the Hague Convention on the Civil Aspects of International Child Abduction, the University of Cincinnati College of Law Domestic Violence and Civil Protection Order Clinic , eleven law professors , the Domestic Legal Violence Legal Empowerment and Appeals Project, the Battered Women's Justice Project- Domestic Abuse Interviention Programs, Inc., the National Coalition Against Domestic Violence, Legal Momentum, and the National Network to End Domestic Violence.
In support of neither party, an amicus curiae brief was filed by Reunite International Child Abduction Center.
On May 17, 2010, Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Ginsberg
, Alito and Sotomayor
, delivered the opinion of the Court in holding that a parent's ne exeat right is a "right to custody" under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act. In so finding, the Supreme Court overruled the Fifth Circuit Court of Appeals and remanded the case for further proceedings in conformity with the Supreme Court ruling.
The threshold question considered by the Court was whether the child at issue, A.J.A., was "wrongfully removed" from Chile
in violation of a parent's "right of custody" so as to trigger the applicable compulsory return provisions of the Hague Convention on the Civil Aspects of International Child Abduction. In determining whether the child was "wrongfully removed," the Court considered the plain language of the Hague Convention, the position of the U.S. Department of State, Chilean law, rulings of several foreign jurisdictions that had considered the issue, and the purpose of the Hague Convention. The Court found broad acceptance for the view that a ne exeat right, or a right to prevent a child's removal from his country of residence, is roughly equal to "joint custody
" and is, thus, a "right of custody." Accordingly, when A.J.A. was removed from Chile in violation of Mr. Abbott's ne exeat right, the child was "wrongfully removed" within the meaning of the Hague Convention. Under such circumstances, the Convention compels A.J.A.'s return to Chile unless Mrs. Abbott can establish an exception under the Hague Convention based on the child's need for emergency protection. To determine whether such emergency circumstances exist, the Supreme Court remanded the case for further proceedings consistent with its ruling.
Justice Stevens
, joined by Justice Thomas
and Justice Breyer, delivered the dissenting opinion of the Court. The dissent concluded that reliance on the Hague Convention to compel A.J.A.'s return to Chile was improper; in a situation like the Abbotts', the Hague Convention provides recourse for the non-custodial parent to exercise his "rights of access" internationally, but the Convention does not provide a non-custodial parent the right to compel the child's return to its habitual country of residence.
The dissenting opinion noted that Mr. Abbott's rights are limited to visitation and the right to restrict the child's travel outside of Chile. The dissent also emphasized the fact that Mrs. Abbott has the exclusive right to make decisions about the child's education, medical care and day-to-day life. Contrary to the majority view, the dissent concluded that Mr. Abbott's limited parental rights fall well short of the Hague Convention's requirements for compulsory return of a child. Mr. Abbott had neither a right to determine the child's residence nor a right to make decisions about the child's care; Mr. Abbott's limited rights do not elevate his status to that of a custodial parent. According to the dissent, Mr. Abbott is not a custodial parent and cannot satisfy the requirements set forth in the Hague Convention for compulsory return of a child to his home country.
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
and the International Child Abduction Remedies Act.
History
In 1995, "A.J.A." was born in Hawaii to parents Timothy Abbott, a British citizen, and Jacquelyn Abbott, a U.S. citizen. The family subsequently moved to ChileChile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
for Mr. Abbott's work with a U.S. Observatory, where the parents separated due to domestic violence issues and during the first abduction of A.J.A. by Mr. Abbott child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
proceedings regarding the care and custody of A.J.A. were instituted by Mr. Abbott. Mrs. Abbott was awarded full care and custody of A.J.A, and Mr. Abbott was granted weekend visitation and partial summer possession of the child. Upon separation, standard Chilean law provided Mr. Abbott, the non-custodial parent of A.J.A., a ne exeate right to prevent A.J.A. from being removed from Chile by Mrs. Abbott without Mr. Abbott's prior consent, which could not be unreasonably withheld under Chilean law as determined by the court.
During the first abduction of A.J.A. by Mr. Abbott, on January 13, 2004, the Chilean family court entered a decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
with a ne exeat order prohibiting either parent from removing the child from Chile at the request of Mrs. Abbott.
The U.S. Observatory refused to provide proof of Mr. Abbott's salary to the Chilean courts, making it virtually impossible to obtain child or spousal support in Chile. Fortunately for Mrs. Abbott and A.J.A., Mr. Abbott's legal counsel had filed a document listing what was generally considered to be a reasonable percentage of his salary for support, while arguing it was too much, and the Chilean court used this document to set a support amount. Mr. Abbott litigated this decision all the way to the Chilean Supreme Court to try and keep from having to pay child support, but lost at the highest levels in Chile. From March of 2003 to August of 2005, Mr. Abbott refused to pay child or spousal support and ignored orders by the Chilean court to do so. He was arrested for non-payment of child support and made an arrangement to pay the back amounts, but reneged on that very quickly. Mrs. Abbott was unable to work in Chile due to the visa she was given by the U.S. Observatory as an accompanying wife of an astronomer.
In July 2005, Mr. Abbott sought to modify the court's visitation order and expand his visitation rights. After the second abduction of A.J.A. by Mr. Abbott and before a scheduled hearing on Mr. Abbott's petition could be held, Mrs. Abbott removed A.J.A. to Texas without Mr. Abbott's prior consent. Mrs. Abbott did not request permission from the Chilean court to take the child out of Chile or to override Mr. Abbott's ne exeat right.
Mr. Abbott brought suit in Federal District Court seeking an order compelling A.J.A's return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction.
Amicus curiae
In support of Mr. Abbott's position, amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
briefs were filed by the Permanent Bureau of the Hague Conference on Private International Laws , United States of America , the State of California , the National Center for Missing and Exploited Children
National Center for Missing and Exploited Children
The National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
, S&W International ChildFind Program, the Massachusetts Society for the Prevention of Cruelty to Children
Massachusetts Society for the Prevention of Cruelty to Children
Massachusetts Society for the Prevention of Cruelty to Children is a non-governmental charitable organization with offices in Boston and throughout Massachusetts which seeks to strengthen families and prevent child abuse through essential child welfare and mental health treatment and effective...
, Justice for Children, Pathways for Children, Children’s Law Center of Los Angeles, and Emerge .
In support of Ms. Abbott's position, amicus curiae briefs were filed by Delegates Lawrence H. Stotter and Matti Savolainen on the Drafting and Negotiating of the Hague Convention on the Civil Aspects of International Child Abduction, the University of Cincinnati College of Law Domestic Violence and Civil Protection Order Clinic , eleven law professors , the Domestic Legal Violence Legal Empowerment and Appeals Project, the Battered Women's Justice Project- Domestic Abuse Interviention Programs, Inc., the National Coalition Against Domestic Violence, Legal Momentum, and the National Network to End Domestic Violence.
In support of neither party, an amicus curiae brief was filed by Reunite International Child Abduction Center.
Majority opinion
Ginsberg
Ginsberg, Ginsburg, Ginsburgh, Ginsparg, Ginzberg, Ginzborg, and Ginzburg are variants of the same surname.-Ginsberg:* Allen Ginsberg, Beat poet* Asher Hirsch Ginsberg , Zionist writer and philosopher...
, Alito and Sotomayor
Sotomayor
-Art:*Carlos Sotomayor, , Chilean painter*Chris Sotomayor, artist who works as a colorist in the comics industry*Michael Hennet Sotomayor , member of the boyband D'NASH-Sport:*Javier Sotomayor, Cuban high jumper...
, delivered the opinion of the Court in holding that a parent's ne exeat right is a "right to custody" under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act. In so finding, the Supreme Court overruled the Fifth Circuit Court of Appeals and remanded the case for further proceedings in conformity with the Supreme Court ruling.
The threshold question considered by the Court was whether the child at issue, A.J.A., was "wrongfully removed" from Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
in violation of a parent's "right of custody" so as to trigger the applicable compulsory return provisions of the Hague Convention on the Civil Aspects of International Child Abduction. In determining whether the child was "wrongfully removed," the Court considered the plain language of the Hague Convention, the position of the U.S. Department of State, Chilean law, rulings of several foreign jurisdictions that had considered the issue, and the purpose of the Hague Convention. The Court found broad acceptance for the view that a ne exeat right, or a right to prevent a child's removal from his country of residence, is roughly equal to "joint custody
Joint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
" and is, thus, a "right of custody." Accordingly, when A.J.A. was removed from Chile in violation of Mr. Abbott's ne exeat right, the child was "wrongfully removed" within the meaning of the Hague Convention. Under such circumstances, the Convention compels A.J.A.'s return to Chile unless Mrs. Abbott can establish an exception under the Hague Convention based on the child's need for emergency protection. To determine whether such emergency circumstances exist, the Supreme Court remanded the case for further proceedings consistent with its ruling.
Dissenting opinion
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, joined by Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Justice Breyer, delivered the dissenting opinion of the Court. The dissent concluded that reliance on the Hague Convention to compel A.J.A.'s return to Chile was improper; in a situation like the Abbotts', the Hague Convention provides recourse for the non-custodial parent to exercise his "rights of access" internationally, but the Convention does not provide a non-custodial parent the right to compel the child's return to its habitual country of residence.
The dissenting opinion noted that Mr. Abbott's rights are limited to visitation and the right to restrict the child's travel outside of Chile. The dissent also emphasized the fact that Mrs. Abbott has the exclusive right to make decisions about the child's education, medical care and day-to-day life. Contrary to the majority view, the dissent concluded that Mr. Abbott's limited parental rights fall well short of the Hague Convention's requirements for compulsory return of a child. Mr. Abbott had neither a right to determine the child's residence nor a right to make decisions about the child's care; Mr. Abbott's limited rights do not elevate his status to that of a custodial parent. According to the dissent, Mr. Abbott is not a custodial parent and cannot satisfy the requirements set forth in the Hague Convention for compulsory return of a child to his home country.
External links
- Opinion from Fifth Circuit Court of Appeals, No. 07-50967