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Abbott v. Abbott

Supreme Court of the United States · 2010 · Family Law
560 U.S. 1 (2010)
Updated
Family LawHague Conventioninternational child abductionne exeatICARArights of custodyrights of accesschild's place of residence

Facts

The parents lived in Chile, where Chilean courts gave the mother daily care and control of their son and gave the father direct and regular visitation rights. Under Chilean Minors Law 16,618, a parent with visitation rights has authority to consent before the child may be taken out of Chile, giving the father a ne exeat right. While proceedings were pending in Chile, the mother took the child from Chile to Texas without the father's permission or the Chilean court's permission. The father then sought the child's return to Chile under the Hague Convention and ICARA.

Issue

Does a parent's ne exeat right—the authority to consent before the other parent may take the child to another country—constitute a 'right of custody' under the Hague Convention, so that removing the child in breach of that right is a wrongful removal subject to the Convention's return remedy?

Rule

Under the Hague Convention, a parent has a right of custody by reason of a ne exeat right when that right gives the parent a joint right to determine the child's country or place of residence. A child's removal in breach of that right is wrongful if the right was actually exercised or would have been exercised but for the removal, unless a Convention exception applies.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Lena Ortiz and Daniel Price lived with their 9-year-old daughter in Lima, Peru. A Peruvian order gave Lena daily care and gave Daniel regular visitation, and Peruvian law also required Daniel's consent before Lena could take the child out of Peru; Lena moved the child to Phoenix without asking him.

If Daniel files a Hague Convention petition in federal court in Arizona seeking the child's return to Peru, what is the strongest argument that the removal was wrongful?

Explanation. The Convention classifies a parent's rights by the Convention's definitions, not by domestic labels alone. A ne exeat right requiring Daniel's consent before the child leaves Peru gives him a joint right to determine the child's country of residence, which is a right of custody supporting the return remedy if breached.