Abbott v. Abbott: ne exeat right = right to custody?

Abbott v. Abbott: ne exeat right = right to custody?

In Abbott v. Abbott, the Supreme Court was asked to interpret the Hague Convention, specifically the Civil Aspects of International Child Abduction, to determine whether a ne exeat right, i.e the authority to consent before the other parent may take the child to another country, confers a right of custody.

The Abbotts, a British citizen and a US citizen, moved to Chile and ultimately separated.  The Chilean courts granted the mother daily care and control of the child, but also gave the father “direct and regular” visitation rights as well as a ne exeat right.  Ms. Abbott then removed him from Chile without permission, and fled to Texas, where she filed for divorce, requesting a modification of the father’s rights,  thereby attempting to gain full power over the boy’s place of residence.  Mr. Abbott filed a motion in the Texas courts to counterclaim, requesting the Ms. Abbott show cause for why the court should not allow the child to return to Chile with Mr. Abbott.  The lower courts denied Mr. Abbott’s request and found in favor of the wife, holding that the father had no right of custody under the Convention; his ne exeat right is only a veto right over his son’s departure from Chile, not actually custody rights.

The Convention was adopted to combat international abductions effectuated during domestic disputes.  Its primary operating feature is the return remedy, which states that when a child has been wrongfully taken, the country to which he has been taken must order that he be returned to his country of habitual residence.  Wrongful removals are those that violate of right of custody.

The Supreme Court disagreed with the lower courts and found that the father’s ne exeat right is consistent with a right of custody.  If found that implicit in a ne exeat right is the principle that neither parent can unilaterally establish the child’s place of residence.  The Court determined that this right is paramount to the right of care of the child.  Thus, though the “ne exeat right does not fit within the traditional notions of physical custody,” per the definition of the Convention, it fully aligns with the definition of right to custody, and not with the “right of access”, as Ms. Abbott argued.  Right of access, the Court determined, is a much more limited visitation right, and not a right to ultimately decide where the child may reside, as the ne exeat right is.  Thus, the Mr. Abbott had a custody right over the child, and thus the child should be ordered returned to Chile.

Abbott v. Abbott, 560 U.S. ____ (2010).