International Child Custody Abduction in Arizona
You may not realize that the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is the law in the USA, but it is. This international law, intended to deal with parental child abduction, is the law of the land in signatory countries. The United States recognizes the Hague Convention as binding domestic law.
The core provision of the Hague Convention requires that – in cases of parental child abduction — the child must be returned to the country where the couple habitually lived. This provision was the subject of dispute in the landmark case of Abbott v. Abbott, 542 F.3d 1081, 1087 (5th Cir. 2008), 130 S. Ct. 1983 (2010).
The case began in Chile, where Jacquelyn and Timothy Abbot, a married couple, separated in 2003. The Chilean court gave custody of their young son to Jacquelyn, with ample visitation rights to Timothy. The court also issued a ne exeat order, which is an order prohibiting either parent from taking a minor child out of the country without the other parent’s consent.
Without telling Timothy, Jacquelyn took their son and moved to Texas. Timothy located them there and filed a case in federal court, asking the judge to order the boy to be returned to Chile. He claimed that the boy’s removal from Chile constituted a “wrongful removal” under the Hague Convention.
However, the Texas court denied Timothy’s request. It ruled that the ne exeat order issued by the court in Chile did not grant Timothy custody rights to his child, but access rights. Only custody rights, the court held, can result in a “wrongful removal” under the Hague Convention and require the court to order the child returned to Chile.
Timothy appealed to the Fifth Circuit court. That court also found that whether it must order the child returned to Chile depended on whether Timothy’s rights under the ne exeat order were “rights of custody” or “rights of access” under the Hague Convention. The Fifth Circuit court noted that some District courts said yes, on the issue, and some said no, but ultimately denied Timothy’s request.
It reasoned that since the Chilean court awarded Jacquelyn sole custody, Timothy did not get any custody rights under the order. It characterized the ne exeat order as a right to veto the child’s departure from Chile, not a custody right, and thus not a basis for a court order returning the child to Chile. The U.S. Supreme Court agreed to hear the case and resolve the different rulings in the lower courts.
Custody Rights under the Hague Convention
The U.S. Supreme Court noted that the Hague Convention only gives a parent the right to have a child returned to the country he lived in if that parent has custodial rights. “Access rights” are not enough to trigger the provision requiring the return of the child to the country of habitual residence. Custody rights and access rights do not mean the same thing in all situations, however.
In divorce cases in America, custody usually refers to the responsibility for daily supervision and care of a child, while access rights generally mean the right to visitation. However, because this case involved the way those words were used in the Hague Convention, the Court looked to the terms of the treaty itself.
The Court found that the Hague Convention defines custody rights to include “the right to determine the child’s place of residence.”
It found that that the ne exeat rights conveyed to Timothy gave him the right – with his wife — to jointly decide his son’s country of residence. From this, the U.S. Supreme Court concluded that, because the Hague Convention defines custody rights to include “the right to determine the child’s place of residence,” Mr. Abbott’s right to determine his son’s country of residence through his statutory ne exeat right constituted a joint custody right.
Sources Outside of the Treaty
After looking at the language of the treaty, the Court discussed other sources of treaty interpretation. The Court said that the U.S. Department of State regarded ne exeat rights as rights of custody, and noted that this was also the interpretation given to ne exeat rights by six other Hague Convention member states.
This was of particular importance since “uniform international interpretation of the Convention” was part of the Convention’s framework.
The Court ruled that a parent – like Timothy — with a ne exeat right has a custody right and may seek a judicial order requiring the child’s return to the country of habitual residence. Therefore, the Court reversed the decision and sent the case back to the lower court for further consideration.
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Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.