On May 17, the Supreme Court decided Abbott v. Abbott, No. 08-645, holding that a father's statutory right under Chilean law to consent before his child could be removed from that country constituted a "right of custody" for purposes of enforcing the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and a federal statute implementing that Convention, although the mother, who had removed the child to the United States, had been granted regular physical custody by a Chilean court order.
The Convention provides that a child abducted in violation of "rights of custody" must be returned to the child's country of habitual residence unless certain exceptions apply. In this case, the Abbotts separated while living in Chile, and the Chilean court granted primary physical custody of their minor son to Ms. Abbott, while granting Mr. Abbott extensive visitation rights. Chilean statutory law also gave Mr. Abbott, by virtue of his visitation rights, what is termed a ne exeat right prohibiting the son's removal from the country without his consent. Without obtaining Mr. Abbott's consent or a court order, Ms. Abbott moved to Texas with the son, and she commenced divorce proceedings there, seeking a modification of the father's rights. Mr. Abbott sued in federal court in Texas for an order compelling the boy's return to Chile pursuant to the Convention, but the court denied the order on the ground that his ne exeat right was not a "right of custody" as understood under American law and that, therefore, the Convention's return remedy was inapplicable. The Fifth Circuit affirmed.
The Supreme Court reversed, holding that a ne exeat right constitutes a right of custody under the Convention and the implementing federal statute, at least when coupled with Mr. Abbott's regular visitation rights under the Chilean court order. The Convention defines "rights of custody" as including "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." That the father's rights did not match precisely with traditional notions of physical custody under U.S. law is beside the point, because the Convention's definition controls. Deference to that definition, rather than to varying definitions under local law, best assures international consistency in interpreting the Convention. It is also consistent with the general recognition under American law of modern concepts of shared custody.
The Court noted that its interpretation of the Convention was strongly supported by the U.S. State Department, to whose treaty interpretations the Court normally defers; by the interpretation in other countries that are parties to the treaty; and by the Convention's central purpose of deterring child abductions to countries whose rules the abducting parent believes are more favorable to his or her position. Finally, it noted that a parent's right under the Convention to require a child's return to the country from which it was abducted is not absolute, and that return may be denied if the abducting parent establishes that return would "expose the child to . . . harm or [an] otherwise . . . intolerable situation" or if the child is sufficiently mature to express a preference about where he or she wants to live.
Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor joined. Justice Stevens filed a dissenting opinion in which Justices Thomas and Breyer joined.