560 U.S. 1 (2010)
Timothy Abbott, a British citizen, and Jacquelyn Abbott, a United States citizen, married in England in 1992.1 Their son A. J. A. was born in Hawaii in 1995 after the couple moved there for Mr. Abbott’s astronomy work.2 The family relocated to La Serena, Chile, in 2002, where marital discord led to separation in March 2003.3
Chilean courts granted the mother daily care and control of A. J. A. while awarding the father direct and regular visitation rights, including every other weekend and the full month of February each year.4 Under Minors Law 16,618, article 49, Chilean law conferred a ne exeat right on the father requiring his authorization before the child could leave the country.5 The mother obtained a ne exeat order from the Chilean family court prohibiting removal of the boy.6
In August 2005, while proceedings remained pending before the Chilean court, the mother removed A. J. A. from Chile to Texas without permission from the father or the court.7 A private investigator later located the mother and child in Texas.8 The mother filed for divorce in Texas state court in February 2006, seeking modification of the father’s rights including sole authority over the child’s residence.9
Mr. Abbott filed an action in Texas state court requesting visitation and an order to show cause why the child should not return to Chile.10 The state court denied return but granted liberal visitation periods in Texas during February 2006.11 In May 2006, Mr. Abbott filed suit in the United States District Court for the Western District of Texas under the Hague Convention and the International Child Abduction Remedies Act seeking the child’s return to Chile.12
After a bench trial at which only Mr. Abbott testified, the District Court denied relief in July 2007.13 The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale.14 The Supreme Court granted certiorari to resolve a conflict among the circuits on the status of ne exeat rights.15
Whether a parent has a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction by reason of that parent’s ne exeat right?16
The Convention provides that the removal or retention of a child is wrongful where it is in breach of rights of custody under the law of the state of habitual residence.17 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.18
Yes. Chilean courts granted Timothy Abbott direct and regular visitation rights after the family separated in Chile.19 Under Minors Law 16,618 article 49 this conferred upon him a ne exeat right requiring his authorization before A. J.
A. could leave the country.20 This ne exeat right gives Mr. Abbott the joint authority to determine his son’s country of residence, which the Convention treats as the right to determine the child’s place of residence.21 It also supplies rights relating to the care of the person of the child because the choice of country shapes the child’s language, identity, culture, and traditions.22
A parent has a right of custody under the Convention by reason of that parent’s ne exeat right.23
Related opinions on this issue
Joined by Justices Thomas And Breyer
Justice Stevens, joined by Justices Thomas and Breyer, dissented.24 He maintained that the ne exeat right is a right of access rather than a right of custody.25 The travel restriction does not confer the affirmative power to determine the child's place of residence or rights relating to the care of the child.26
Mr. Abbott has no authority over daily decisions or to fix the child's home within Chile or in another country.27
Whether the removal of a child from Chile in violation of a ne exeat right is wrongful under the Convention so as to authorize a return remedy to Chile?28
Yes. Jacquelyn Abbott removed A. J. A.
from Chile in August 2005 without permission from Timothy Abbott or the Chilean court while proceedings were pending.31 This action breached the ne exeat right that Chilean law conferred on Mr. Abbott through his visitation rights under Minors Law 16,618 article 49.32 Because that ne exeat right constitutes a right of custody, the removal was wrongful and authorizes a return remedy to Chile, subject only to any Convention exceptions that may be addressed on remand.33
The removal of a child from Chile in violation of a ne exeat right is wrongful under the Convention so as to authorize a return remedy to Chile.34
Whether the interpretation of rights of custody under the Convention is informed by the views of the United States Department of State and decisions of courts in other contracting states?35
Yes. The United States Department of State has long understood ne exeat rights to be rights of custody under the Convention.38 Courts in England, Israel, Austria, South Africa, Germany, Australia, and Scotland have reached the same conclusion.39 The Supreme Court of Canada and some French courts have taken a more restrictive view that does not alter the result here.40
The interpretation of rights of custody under the Convention is informed by the views of the United States Department of State and decisions of courts in other contracting states.41