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The Supreme Court and the Hague Abduction Convention
In Abbott v. Abbott, No. 08-645, the U.S. Supreme Court has now issued its very first decision interpreting the Hague Convention on the Civil Aspects of International Child Abduction. The Convention provides that a child who is taken to or retained in a foreign country without the consent of a person with “rights of custody” over the child under the law of the child's habitual residence must be returned to the habitual residence unless an exception applies. It was brought into U.S. law by the International Child Abduction Remedies Act (ICARA).
The Supreme Court overruled the Fifth Circuit and a line of cases on a key issue ' whether a parent's right to prevent international travel, known as a ne exeat right, is a “right of custody” ' that had originated with a Second Circuit decision in 2000 and had been followed in some but not all circuits.
The case concerned a British father and an American mother who had moved with their son from Hawaii to Chile, where they had separated. A Chilean court had assigned daily care and control of the child to the mother, with mere visitation rights to the father. The mother then covertly took the child to Texas. The father brought suit in Texas under the Convention, seeking the child's return to Chile.
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