Nearly everyone I know from the state of New Jersey has heard about the horrific battle Sean Goldman faced trying to have his biological son returned from Brazil where he was being cared for by his step-father after the unexpected death of his mother.  Recently, at the end of December he was finally reunited with his son, seemingly only after the case caught nation and worldwide media attention.  What some people may not know or fail to realize is that there are Sean Goldman’s all over this country.  Parents from New Jersey and other states are faced in a similar battle trying to have their children returned to them from foreign nations.

One such case is the matter of Abbott v. Abbott scheduled for oral argument before the United States Supreme Court on January 12, 2010.  The Abbotts were married in England and later had a child in Hawaii.  They moved to Chile where they separated in 2002 and were later divorced.  The Chilean court granted the mother custody and father visitation rights.  In 2004, at the mother’s request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without mutual consent of the other.

The mother brought the child to the US without the father’s consent.  Father filed suit in Texas asking the court to grant the return of the child to Chile pursuant to the Hague Convention.  The Texas court denied the return of the child to Chile finding that the removal did not breach the father’s “rights to custody” under the Hague Convention as was argued.  The father appealed and in September 2009, the Fifth Circuit affirmed, holding that only the custodial parent can invoke the Hague Convention to get the child returned.

Father petitioned to the US Supreme Court who will hear oral argument on Tuesday, January 12, 2010.  Amici curaie briefs have been filed.  The Domestic Violence and Civil Protection Order Clinic at the University of Cincinnati College of Law contends that looking at the best interests of the child requires a finding for Mrs. Abbott.  Another group of organizations working in the field of domestic violence are concerned that the treatment of these ne exeat orders could allow many primary caretakers to use such orders as a tool to maintain control over their former partners.

The State of California urges the Supreme Court to construe ne exeat orders as conferring custody rights to a technically non-custodial parent.  California further argues that when certain legal principles are applied (comity & reciprocity) return of the child is the right answer.

It will be interesting to see how our nation’s Supreme Court views this issue.  We will provide an update once the decision is rendered.