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U.S. Supreme Court Enforces Hague Convention Custody Rights

I have been involved in many international child custody disputes that have required use of the Hague Convention on Child Abduction; whose underlying purpose is to protect children from being removed improperly from one country and taken to another by requiring the prompt return of that child to his country of habitual residence (usually the country where he had been taken from), without any determination being made as to the merits of the parties underlying custody dispute. The concept is simple.

The Convention has received a lot of publicity in recent years over the Sean Goldman case, and his return from Brazil after being abducted by his mother from New Jersey. What is less well known is that United States courts have been slow and inconsistent in returning children to other countries as well. In fact, in a Hague Convention case I was involved with, where the father sought return of his children to Cyprus, I was forced to file an application with the federal court for an expedited hearing on the children’s return after the court failed to set a prompt hearing date.

While the concept of the prompt return of a child to his place of habitual residence is logical, there are a number of exceptions when a court (here and elsewhere) can refuse to return a child, found in Article 13 of the Convention. One of these exceptions may occur if the parent requesting the return of the child “was not actually exercising his / her custody rights at the time of removal."

This issue (not exercising custody rights) was addressed earlier this year by the United States Supreme Court’s decision in Abbott v Abbott. In Abbott, a couple married in England, moved to Chile in 2002 and separated in 2003, with the Chilean court granting the mother (an American) primary care of their 8 year old son and granting the father (a Brit) visitation every other weekend. A not too uncommon custody & parenting plan.

Under Chilean law, the father was also granted a “ne exeat" right, i.e. a right of consent, before the child could be removed from the country. In effect, this is a “no exit" or “non-removal" right under Chilean family law, without the permission of the other parent.

Despite the father’s “no exit" right, without his consent, in 2005, the mother left Chile and returned to the United States with the parties' child without permission of the father or permission from the Chilean court. In 2006, the mother then filed for divorce in Texas, where she also sought sole custody of the parties’ son. The father filed a Hague Convention action in the US District Court for the Western District of Texas, seeking the return of the parties’ son to Chile.

The federal district court denied the father’s application, finding the father’s “ne exeat" right as not being the same thing as a right of custody under the Convention.

Ultimately, because of the disagreement between and among the various lower courts which considered this issue, the U.S. Supreme Court addressed it and in its majority opinion unequivocally concluded that the federal district court was wrong and that a “ne exeat" or “no exit" right is a right of custody and consistent with the definition of custody in Article 5a of the Convention. Hence, the U.S. Supreme Court ruled that viewing a “ne exeat" right as something less than a custody right would render the Convention meaningless in many cases where it is most needed.

If you are a parent in the process of separating or divorcing from a partner who is a foreign national, I would recommend that you make sure that any custody or parenting time order has a “ne exeat" or “no exit" provision included.

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