The Supreme Court ruled Monday, May 17, 2010, that a Texas mother illegally moved her son from Chile to the United States during a custody dispute with the boy’s British father in the first test of the boundaries of an international child custody treaty.
The high court ruled that the Hague Convention on child abduction — aimed at preventing a parent from taking children to other countries without the other parent’s permission — demands that the child goes back to the South American country.
However, Justice Anthony Kennedy, who wrote the 6-3 decision, said Jacquelyn Abbott can argue in lower courts in the United States for an exception to the international treaty that could allow her son to stay in the U.S.
The child, born in Hawaii, is a U.S. citizen.
Timothy Abbott accused his estranged wife of violating a court order in Chile by taking their 10-year-old son to Texas without the father’s consent.
Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The Chilean courts had given him visitation rights and the authority to consent before the other parent takes the child to another country, known as “ne exeat rights”.
The mother argued that she has exclusive custody of the boy, and that U.S. courts are powerless under the treaty to order his return.
A federal judge acknowledged that taking the son to the United States violated the Chilean court order but sided with the mother, and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.
The Supreme Court reversed the appeals court decision.
“To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes,” Kennedy said.
The United States is among more than 80 countries that follow the treaty, and the Obama administration had sided with Timothy Abbott.
He “has the ability to decide whether or not the child may be taken outside of the country of habitual residence, and thus the right to share in the decision as to where the child will reside,” Solicitor General Elena Kagan wrote in court briefs.
Kagan now has been nominated by President Barack Obama for the Supreme Court.
Justices John Paul Stevens, Clarence Thomas and Stephen Breyer dissented from the court’s opinion.
Stevens said the boy’s father never had custody rights, only visitation rights. That means that the father cannot determine where the boy lives, he said.
“A parent without ‘rights of custody,’ therefore, does not have the power granted by (the treaty) to compel the child’s return to his or her country of habitual residence,” Stevens said.
Kennedy said that an exception to the Hague Convention deals with the safety of the parent.
“If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at risk, the court could consider whether this is sufficient to show that the child too would suffer ‘psychological harm’ or be placed in an intolerable situation,” Kennedy said.
Lower courts can also take into account the child’s wishes if he is mature enough to express them, Kennedy said.
An Orange County child custody attorney can assist you in any international custody disputes you may be facing. Contact an Orange County family law attorney for more information.