The following blog has been written by Eliana Baer, an associate of the firm resident in our Princeton office.

In our increasingly mobile society, it is no surprise that the issue of international child abduction has emerged as one of the new “hot topics” in family law.  On May 17, 2010, the United States Supreme Court issued an opinion in Abbott v. Abbott, involving different aspects of international abduction and custody. Sandra Fava, an associate in our Roseland office previously blogged about this case.

 

In Abbott, Timothy Abbott, a British citizen, and Jacquelyn Abbott, an American citizen, obtained a divorce in the Chilean courts.  Mrs. Abbott was awarded custody of their son, and Mr. Abbott was awarded visitation rights. At Mrs. Abbott’s request, the Chilean court entered an order prohibiting the child’s removal from Chile by either party without prior mutual consent. When about one year later, Mrs. Abbott removed the child to Texas without Mr. Abbott’s consent, Mr. Abbott filed suit in the Federal District Court in Texas, seeking an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Chile and the United States are signatories to the Hangue Convention). The district court held that the child’s removal did not constitute a breach of the father’s "rights of custody" as defined by the Hague convention. The U.S. Circuit Court of Appeals for the Fifth Circuit affirmed and an appeal was taken to the Supreme Court of the United States.

In  the opinion authored by Justice Anthony Kennedy, the Supreme Court examined whether the Hague Convention confers a “right of custody” so as to prohibit one parent from removing a child a country without the other parent’s consent. First, the Court reasoned that the Hague Convention applies because the child at issue was under 16 years of age and was a habitual resident of Chile. Then, the Court reasoned that the Hague Convention’s text, along with the State Department’s interpretations, signatory states’ case law, and the intent underlying the Hague Convention suggest that Mr. Abbott retained a right under Article 49 of the Hague Convention.  The Court concluded that the child’s noncustodial father, who had regular visitation rights with his child, shared in the right to determine the child’s residence, which constituted a right of custody under the Hague Convention sufficient to invoke enforcement under the Hague. 

While the Supreme Court recognized that the enforcement procedures outlined in the Hague Convention were applicable, the Court did not automatically order the child’s return to Chile.  Rather, the Court remanded the for a determination by the trial court.

As the Court noted, abductions can had devastating consequences on a child, with some psychologists likening abductions to one of the worst forms of child abuse. The decision here seems to be consistent with the underpinnings of the Hague Convention, that is to deter child abductions and to prevent harms resulting from abductions. 

When the matter is decided in the District Court, we will report back.

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