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Treaty Trumps Parental Rights

The U.S. Supreme Court has held that an order prohibiting the removal of a child from a country without the noncustodial parent’s consent is enforceable under an international child abduction treaty. As reported by the National Law Journal, this decision is noteworthy for both its substance and because the justices used foreign law decisions to interpret U.S. treaties and the laws implementing them.

In Abbott v Abbott (.pdf), an American mother and a British father had a child in Chile. When they separated, the mother had primary care of the child and the father had visitation. The mother left Chile with the now 15-year-old child and returned to the United States.

Resolving a split among the federal circuits over the meaning of so-called ne exeat clauses in child custody orders, the majority held that the ne exeat clause in a Chilean court order conferred a “right of custody” on the father within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. This custody right permits the father to seek the treaty’s remedy — a petition to return the child to Chile.

The Court’s decision was not all bad for the mother. The majority explained that just because the father may seek a return remedy doesn’t mean he automatically gets it. On remand,  the mother will have a chance to establish the applicability of a convention exception, e.g., a grave risk that return would harm the child or objection by the child.

This topic, as well as many others relating to enforcement of custody orders, is covered in CEB’s Child Custody Litigation and Practice. For a specific discussion of enforcement under the Hague Convention, see §20.3 of that book.

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