Posted on January 12, 2010 at 8:28 am by Erin Miller
The following argument preview for Abbott v. Abbott (08-645) was written by Jonathan Eisenman, an associate at Akin Gump. Check the Abbott SCOTUSwiki page for updates later.Â [NOTE: Howe & Russell is counsel for the petitioner in this case.Â This is a rare circumstance on SCOTUSblog in which the author of case coverage is a lawyer from a law firm involved in the case.Â This post, however, does not take a position favoring either petitioners or respondents.]
On the heels of the recent return from Brazil of Sean Goldman, the victim of a heavily publicized international child abduction, the Court is set to hear argument in Abbott v. Abbott, a case arising out of the alleged abduction of a child referred to as â€œA.J.A.â€ from Chile to the United States.Â The question in the case is whether one parentâ€™s â€œne exeat rightâ€ â€“ the right to prevent the childâ€™s departure from the country â€“ is a â€œright of custodyâ€ the Hague Convention on the Civil Aspects of International Child Abduction (â€œHague Conventionâ€ or â€œConventionâ€), so that a child taken in violation of that right must be returned.Â If the ne exeat clause gives A.J.A.â€™s father a right of custody under the Convention, then the United States must return A.J.A. to Chile.
Timothy Abbott, a British citizen, married Jacquelyn Vaye Abbott in Hawaii in 1992.Â Their son, A.J.A., was born in Hawaii in 1995.Â The family moved to Chile; while there, Mr. and Mrs. Abbott separated.Â Litigation over custody of A.J.A. began in Chilean family court, with Mrs. Abbott initially awarded daily care and control over A.J.A.Â Mr. Abbott could visit A.J.A. every other weekend, for one evening a week, and for one month of A.J.A.â€™s summer vacation.
On January 13, 2004, the Chilean family court entered an order decreeing the â€œne exeatâ€ of the child.Â In addition, upon the coupleâ€™s separation, a Chilean statute granted Mr. Abbot a ne exeat right as a parent with visitation rights.Â His decision could be overridden, however, if a court deemed it unreasonable.
In July 2005, Mr. Abbott petitioned the Chilean family court to expand his parental rights to A.J.A.Â A hearing was scheduled for early September; however, in late August, Mrs. Abbott removed A.J.A. to Texas without Mr. Abbottâ€™s consent.
Mr. Abbott brought suit in federal court seeking A.J.A.â€™s return to Chile under the Hague Convention, which subject to certain exceptions requires the return of a child when the child is removed from his country of â€œhabitual residence,â€ â€œin breach of rights of custody . . . attributed under the law of the State in which the child was habitually resident immediately before [his] removal.â€Â The Convention further requires that the breached right be one that was actually exercised at the time of the childâ€™s removal, or one that would have been exercised, had the child not been removed.
The district court declined to order A.J.A.â€™s return, finding that the ne exeat order did not give Mr. Abbott a right of custody within the meaning of the Convention.Â The Fifth Circuit affirmed.
Petition for Certiorari
In finding that a ne exeat right does not provide a right of custody, the Fifth Circuit aligned itself with the Second, Fourth, and Ninth Circuits.Â Notably, in the Second Circuitâ€”the first court of appeals to opine on the questionâ€”now-Justice Sotomayor dissented, and would have held that a ne exeat order does provide a right of custody under the Convention.Â The Eleventh Circuit also took the position that a ne exeat order provides a right of custody.
The Court sought the view of the Solicitor General on whether to grant Mr. Abbottâ€™s petition; the Solicitor General recommended a grant and subsequently filed an amicus brief in support of Mr. Abbott.Â The SGâ€™s office also sought, and received, permission to participate in tomorrowâ€™s oral argument.Â Assistant Solicitor General Ginger Anders will divide time with Mr. Abbottâ€™s counsel, Amy Howe.
At its core, Mr. Abbottâ€™s argument is about the Conventionâ€™s function:Â If the Hague Convention is meant to prevent international child abduction by a non-custodial parent, it makes little sense to interpret it as not requiring a childâ€™s return when one parent violates a ne exeat order, frustrating the process of adjudicating custody in the first place.
According to Mr. Abbott, a sensible interpretation of the Convention requires viewing a ne exeat order as vesting both parents with a shared right of custody:Â the right to refuse, within reason, the other parentâ€™s request to remove the child from his place of habitual residence.Â Mr. Abbott furthers that argument by observing that the Convention defines â€œrights of custodyâ€ as including, â€œin particular, the right to determine the childâ€™s residence.â€Â Because a ne exeat order gives a parent the right to veto moving the child out of his country of habitual residence, Mr. Abbott argues, the order confers a right of custody within the very definition provided by the Conventionâ€”a right he would have exercised had he known of Mrs. Abbottâ€™s intention to remove A.J.A. from Chile.
Mr. Abbott contends that should the Court find otherwise, it would make the United States a haven for parents seeking to evade custody determinations in the country of their childrenâ€™s habitual residence.Â Such parents could remove their children to the United States in violation of a ne exeat order without fear that doing so would trigger the Conventionâ€™s requirement that the United States return the child.
Mr. Abbott concludes by observing that other countries courtsâ€™, after the Conventionâ€™s adoption, have treated a ne exeat order as creating a right of custody under the Convention; moreover, there is evidence from the Conventionâ€™s drafting history that a ne exeat order was intended by the drafters to be implicitly within the scope of the term â€œright of custody.â€
The Solicitor Generalâ€™s brief in support of Mr. Abbott brings to bear the State Departmentâ€™s view, as the agency whose Office of Childrenâ€™s Issues is the United Statesâ€™ Central Authority under the Convention, that a ne exeat order confers a right of custody on Mr. Abbott.
In response, Mrs. Abbott argues that at most, a ne exeat order protects Mr. Abbottâ€™s right of access, i.e., his visitation rights, to A.J.A.Â Under the Convention the violation of a right of access, unlike the violation of a right of custody, does not give rise to the obligation that a signatory return a child to his place of habitual residence.Â In contrast to Mr. Abbottâ€™s functional argument, Mrs. Abbott argues that Mr. Abbott has no formal right of custody under Chilean lawâ€”he only had visitation rights when Mrs. Abbott left Chileâ€”and that the ne exeat order serves only to protect the Chilean courtsâ€™ jurisdiction over A.J.A., not to confer a right on Mr. Abbott.Â This point is affirmed, according to Mrs. Abbott, by the fact that any objection to A.J.A.â€™s removal could be overridden by the court that issued the ne exeat order.
Attacking Mr. Abbottâ€™s argument that his right to prevent A.J.A. from leaving Chile is a right to determine A.J.Aâ€™s place of residence, Mrs. Abbott contends that the right to determine A.J.A.â€™s place of residence cannot be divorced from other criteria associated with a right of custody, e.g., the responsibility for providing the child with food, shelter, clothing, guidance, healthcare, and an education.Â As A.J.A.â€™s parent with physical custody, it was Mrs. Abbottâ€™s obligation to provide those things, giving her an unshared right of custody over A.J.A.Â Moreover, Mrs. Abbott interprets â€œplace of residenceâ€ to mean A.J.A.â€™s immediate living quarters, not his country of residence; it follows, per Mrs. Abbott, that the Conventionâ€™s definition of â€œright of custodyâ€ turns â€œparticularlyâ€ on the right to designate a childâ€™s immediate living quarters.Â Accordingly whether Mr. Abbott had some kind of right under the ne exeat order is irrelevant, because it was not a right to determine A.J.A.â€™s habitual place of residenceâ€”his immediate living quartersâ€”and thus not a right of custody.
Mrs. Abbott then turns her attention to the Conventionâ€™s drafting, observing its travaux preparatoires (â€œpreparatory worksâ€) indicate that the treatyâ€™s purpose is to protect custody rights under a signatoryâ€™s law.Â Because, Mrs. Abbott argues, a ne exeat order does not create a custody right under Chilean lawâ€”it merely serves to protect other rightsâ€”the Convention did not contemplate the return of a child removed from a country in violation of a ne exeat order.
Further, Mrs. Abbott claims that the travaux contemplate rights that are â€œactually exercisedâ€ to mean those exercised in the day-to-day care of the child, for which Mrs. Abbott was responsible.Â Mrs. Abbott then argues that a proposal to explicitly extend the Conventionâ€™s return-requirement to ne exeat orders was rejected at the Conventionâ€™s negotiation, and that there is no dispositive quantum of legal authority from other signatories to show that a ne exeat order is widely seen as within the scope of the return-requirement.Â Supporting this point, Mrs. Abbott points to an observation that the original Convention would preserve custody rights, and was not meant to protect any signatoryâ€™s jurisdiction over a child.Â However, when the Convention was revisited in 1996 , a â€œframeworkâ€ meant to protect signatoriesâ€™ jurisdiction over a child was includedâ€”but neither the United States nor Chile signed on to the 1996 Convention.Â Mrs. Abbott reads this as an affirmative rejection by both countries of the view that ne exeat orders provide rights of custody under the Convention.