Supreme Court Says Ne Exeat Clause Must Be Enforced

There has been a split among the Circuits concerning the treatment of cases in which a parent moves a child out of a country without the other parent's permission although a court in that country has ordered that no such move take place without the noncustodial parent's assent. In May, the U.S. Supreme Court settled the issue by ruling that the Hague Convention on the Civil Aspects of International Child Abduction (Hague Converntion) trumps a custodial parent's right to move a child out of a country without the non-custodial parent's consent.

The Issue

In the case of Abbott v. Abbott, 130 S.Ct. 1983 (U.S.,2010), a married couple had moved to Chile along with their son. There, they later separated, and the Chilean courts granted the wife daily care and control of their minor son, while the father was given visitation rights. In addition, the boy was not to be removed from Chile without the father's or a Chilean court's permission, under authority of Chile Minors Law 16,618 (Minors Law 16,618), art. 49. Despite this prohibition, the mother moved the child to Texas, prompting the father to bring suit under the Hague Convention and its implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. ' 11601 et seq., seeking return of the child to Chile.

The case hinged on the interpretation of the Hague Convention's terms. Among its provisions, the Hague Convention seeks “to secure the prompt return of children wrongfully removed or retained in any Contracting State,” Art. 1; provides that such “removal or retention ' is to be considered wrongful where” “it is in breach of rights of custody attributed to a person ' under the law of the State in which the child was [theretofore] habitually resident,” Art. 3 (a), and where “those rights [had been] actually exercised ' or would have been so exercised but for the removal or retention,” Art. 3 (b); and defines “rights of custody” to “include ' the right to determine the child's place of residence,” Art. 5 (a).

The Ne Exeat Right

The District Court denied relief, holding that the father's ne exeat right did not constitute a “right of custody” under the Convention and, thus, the return remedy was not authorized. Using the same rationale, the U.S. Court of Appeals for the Fifth Circuit affirmed (542 F3d 1081), finding that the father's ne exeat right was only “a veto right over his son's departure from Chile.” Because it was not the sort of right that could be “exercised” within the meaning of the Hague Convention, the appellate court reasoned that it did not rise to the level of a “right of custody.” The Supreme Court granted certiorari.

The Court's Analysis

The Supreme Court reversed, holding that the father's ne exeat right was a “right of custody” under the Hague Convention. It came to this conclusion by looking at the child's home state's law (here Chilean), which determines a parent's rights regarding child custody, then interpreting it in light of the Hague Convention, which determines whether those rights rise to the level that they can be deemed a “right of custody.”

Under Chile's Minors Law 16,618, art. 49, as soon as the court has decreed that one of the parents has visitation rights, that parent's authorization generally “shall also be required” before the child may be taken out of the country. Here, the father had been awarded direct and regular visitation rights; thus, under Chile's article 49, he also had a ne exeat right.

The Supreme Court noted that the Hague Convention recognizes that custody rights can be decreed jointly or alone (see Art. 3 (a)), and it determined that the father's ne exeat right could be best classified as a “joint right of custody.” The Hague Convention defines a “joint right of custody” to “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.” Art. 5 (a). Said the Court, “Mr. Abbott's right to decide [his son's] country of residence allows him to 'determine the child's place of residence,' especially given the Convention's purpose to prevent wrongful removal across international borders. It also gives him 'rights relating to the care of the person of the child,' in that choosing [the child's] residence country can determine the shape of his early and adolescent years and his language, identity, and culture and traditions.”

'Right of Custody'

It was of no consequence to the Supreme Court that a ne exeat right does not fit within this country's traditional concepts of what constitutes physical custody rights, because the Hague Convention's definition of “rights of custody” ' not the many U.S. Courts' definitions ' controls in these situations. If this were not the case, courts in the countries that are signatories to the treaty could thwart the Hague Convention's purpose of lending consistency to international child custody arrangements by interpreting the term “rights of custody” in light of their own countries' traditions, thus favoring their own citizens' interests. The Supreme Court also pointed out that most signatory countries that have dealt with the question of whether a ne exeat right constitutes a “right of custody” under the tenets of the Hague Convention have held that it does. These include England, Israel, Austria, South Africa, Germany, Australia, and Scotland. Canada has reached a contrary conclusion, as have some courts in France.

Family Practice in the U.S.

The Abbott decision settles a split between the Appellate Circuits as to the legitimacy of a claim that a child should be returned to its habitual state of residence if permission to remove him or her was not granted by the non-custodial parent holding a ne exeat right. The case's outcome means that when the countries involved in an international child abduction proceeding are parties to the Hague Convention, children illegally brought to a signatory country must be returned to their home states absent an exception set down in the treaty. Thus, the Abbott holding abrogates contrary decisions in the Second Circuit (Croll v. Croll, 229 F3d 133 (2000)), as well as in the Fourth, Fifth, and Ninth Circuits.

A parent who ostensibly has illegally taken a child in violation of the other parent's ne exeat rights still may resort to the exceptions enumerated in the Hague Convention to avoid return of the child. For example, if a child would be endangered if he returned to his home country, the Hague Convention authorizes courts to refuse to send him back. As with any exception under the treaty, however, the burden is on the “abducting” parent to prove that it applies.

Janice G. Inman, Esq., is Editor-in-Chief of this newsletter.

There has been a split among the Circuits concerning the treatment of cases in which a parent moves a child out of a country without the other parent's permission although a court in that country has ordered that no such move take place without the noncustodial parent's assent. In May, the U.S. Supreme Court settled the issue by ruling that the Hague Convention on the Civil Aspects of International Child Abduction (Hague Converntion) trumps a custodial parent's right to move a child out of a country without the non-custodial parent's consent.

The Issue

In the case of Abbott v. Abbott , 130 S.Ct. 1983 (U.S.,2010), a married couple had moved to Chile along with their son. There, they later separated, and the Chilean courts granted the wife daily care and control of their minor son, while the father was given visitation rights. In addition, the boy was not to be removed from Chile without the father's or a Chilean court's permission, under authority of Chile Minors Law 16,618 (Minors Law 16,618), art. 49. Despite this prohibition, the mother moved the child to Texas, prompting the father to bring suit under the Hague Convention and its implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. ' 11601 et seq., seeking return of the child to Chile.

The case hinged on the interpretation of the Hague Convention's terms. Among its provisions, the Hague Convention seeks “to secure the prompt return of children wrongfully removed or retained in any Contracting State,” Art. 1; provides that such “removal or retention ' is to be considered wrongful where” “it is in breach of rights of custody attributed to a person ' under the law of the State in which the child was [theretofore] habitually resident,” Art. 3 (a), and where “those rights [had been] actually exercised ' or would have been so exercised but for the removal or retention,” Art. 3 (b); and defines “rights of custody” to “include ' the right to determine the child's place of residence,” Art. 5 (a).

The Ne Exeat Right

The District Court denied relief, holding that the father's ne exeat right did not constitute a “right of custody” under the Convention and, thus, the return remedy was not authorized. Using the same rationale, the U.S. Court of Appeals for the Fifth Circuit affirmed (542 F3d 1081), finding that the father's ne exeat right was only “a veto right over his son's departure from Chile.” Because it was not the sort of right that could be “exercised” within the meaning of the Hague Convention, the appellate court reasoned that it did not rise to the level of a “right of custody.” The Supreme Court granted certiorari.

The Court's Analysis

The Supreme Court reversed, holding that the father's ne exeat right was a “right of custody” under the Hague Convention. It came to this conclusion by looking at the child's home state's law (here Chilean), which determines a parent's rights regarding child custody, then interpreting it in light of the Hague Convention, which determines whether those rights rise to the level that they can be deemed a “right of custody.”

Under Chile's Minors Law 16,618, art. 49, as soon as the court has decreed that one of the parents has visitation rights, that parent's authorization generally “shall also be required” before the child may be taken out of the country. Here, the father had been awarded direct and regular visitation rights; thus, under Chile's article 49, he also had a ne exeat right.

The Supreme Court noted that the Hague Convention recognizes that custody rights can be decreed jointly or alone (see Art. 3 (a)), and it determined that the father's ne exeat right could be best classified as a “joint right of custody.” The Hague Convention defines a “joint right of custody” to “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.” Art. 5 (a). Said the Court, “Mr. Abbott's right to decide [his son's] country of residence allows him to 'determine the child's place of residence,' especially given the Convention's purpose to prevent wrongful removal across international borders. It also gives him 'rights relating to the care of the person of the child,' in that choosing [the child's] residence country can determine the shape of his early and adolescent years and his language, identity, and culture and traditions.”

'Right of Custody'

It was of no consequence to the Supreme Court that a ne exeat right does not fit within this country's traditional concepts of what constitutes physical custody rights, because the Hague Convention's definition of “rights of custody” ' not the many U.S. Courts' definitions ' controls in these situations. If this were not the case, courts in the countries that are signatories to the treaty could thwart the Hague Convention's purpose of lending consistency to international child custody arrangements by interpreting the term “rights of custody” in light of their own countries' traditions, thus favoring their own citizens' interests. The Supreme Court also pointed out that most signatory countries that have dealt with the question of whether a ne exeat right constitutes a “right of custody” under the tenets of the Hague Convention have held that it does. These include England, Israel, Austria, South Africa, Germany, Australia, and Scotland. Canada has reached a contrary conclusion, as have some courts in France.

Family Practice in the U.S.

The Abbott decision settles a split between the Appellate Circuits as to the legitimacy of a claim that a child should be returned to its habitual state of residence if permission to remove him or her was not granted by the non-custodial parent holding a ne exeat right. The case's outcome means that when the countries involved in an international child abduction proceeding are parties to the Hague Convention, children illegally brought to a signatory country must be returned to their home states absent an exception set down in the treaty. Thus, the Abbott holding abrogates contrary decisions in the Second Circuit ( Croll v. Croll , 229 F3d 133 (2000)), as well as in the Fourth, Fifth, and Ninth Circuits.

A parent who ostensibly has illegally taken a child in violation of the other parent's ne exeat rights still may resort to the exceptions enumerated in the Hague Convention to avoid return of the child. For example, if a child would be endangered if he returned to his home country, the Hague Convention authorizes courts to refuse to send him back. As with any exception under the treaty, however, the burden is on the “abducting” parent to prove that it applies.

Janice G. Inman, Esq., is Editor-in-Chief of this newsletter.