Supreme Court of the United States, May 17 2010
In Abbott v. Abbott the Supreme Court decided that a ne exeat order gives a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction.
The parents moved from the U.S. to Chile with their son, who was born in the U.S. Later, the parents divorced in Chile. Then, the court granted the mother custody of their son and allowed the father only visitation rights. Besides this, on request of the mother, the court issued a ne exeat order. This order prohibits either parent from removing the child from Chile without the agreement of both parents.
Despite this order, the mother brought the son to the U.S., without the consent of the father. The father asks the U.S. court for a return order based on the Hague Convention. He argues that the ne exeat order gives him a right of custody as meant in the Convention. His opinion was based on the following.
Custody in the Convention
Art. 3 of the Convention states that a ‘wrongfull removal’ is one that occurs ‘in breach of rights of custody; .
Art. 5 of the Convention states that rights of custody include ‘rights relating to the care of the person of the child and, in particular the right to determine the child’s place of residence’.
The father argues that that the Hague Convention intended rights of custody to be an autonomous concept, independent of how custody rights are specifically difined by the laws of a particular country. But the mother argued that custody rights are affirmative rights in determining a child’s place of recidence, and a ne exeat is not a affirmative right.
In Abbott v. Abbott the supreme court decided that the ne exeat order did give the father a right of custody. This gave the father the possibility to ask for immediate return of the son based on art. 12 of the Convention.
This is also the vision of the other treaty countries. This is in line with the vision of the Permanent Bureau of the Hague Convention on Private International Law (Permanent Bureau), which urges consistent application of the Convention to maintain mutual trust and confidence between the contracting countries.
For the EU member States (except Denmark) the scope of the word custody is made clear in art. 2 sub 11, b of Brussel II bis: ‘custody is deemed to be exercised jointly if one of the persons who, by virtue of a decision or by operation of law, has parental responsibility cannot determine the child’s place of residence without the consent of another person who has parental responsibility.
This means that parents with an international background/ life can, during a divorce procedure or later when they fear a child abduction, ask the court to decide that their consent is necessary for an international relocation of the child. (This will most likely be bases on the fact that an international relocation would interfere with the visitation rights.) Even when there is no joint custody, a court decision like that, will give them the opportunity to ask for immediate return of the child to the country from which it was abducted bases on the Convention, if at some point the child is indeed abducted to another country.