Abbott v. Abbott

• Citation: 130 S.Ct. 1983,176 L.Ed.2d 789,560 U.S. 1
• Decision Date: 17 May 2010
• Docket Number: No. 08–645.,08–645.
• Parties: Timothy Mark Cameron ABBOTT, Petitioner, v. Jacquelyn Vaye ABBOTT.
• Court: United States Supreme Court

560 U.S. 1

130 S.Ct. 1983

176 L.Ed.2d 789

Timothy Mark Cameron ABBOTT, Petitioner,

v.Jacquelyn Vaye ABBOTT.

No. 08–645.

Supreme Court of the United States

Argued Jan. 12, 2010.

Decided May 17, 2010.

Amy Howe

, Bethesda, MD, for petitioner.

Ginger Anders

, for the United States as amicus curiae, by special leave of Court, supporting petitioner.

Karl E. Hays

, Austin, TX, for respondent.

Pamela S. Karlan

, Jeffrey L. Fisher, Stanford Law School, Stanford, CA, Amy Howe, Counsel of Record, Kevin K. Russell, Howe & Russell, P.C., Bethesda, MD, Thomas C. Goldstein, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC.

Karl E. Hays

, Counsel of Record, Law Offices of Karl E. Hays, Austin, TX, of Counsel: Stephanos Bibas, Philadelphia, PA, Stephen B. Kinnaird, Alexander M.R. Lyon, Igor V. Timofeyev, Sean D. Unger, Elizabeth A. Stevens, Rachel L. Ricker, Paul, Hastings, Janofsky & Walker LLP, Washington, DC, for Respondent Jacquelyn Vaye Abbott.Opinion

Justice KENNEDY

delivered the opinion of the Court.

This case presents, as it has from its inception in the United States District Court, a question of interpretation under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.S.C. § 11601 et seq.

The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child's country of habitual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, at 7 (Treaty Doc.). The question is whether a parent has a “righ[t] of custody” by reason of that parent's ne exeat right: the authority to consent before the other parent may take the child to another country.

I

Timothy Abbott and Jacquelyn Vaye Abbott married in England in 1992. He is a British citizen, and she is a citizen of the United States. Mr. Abbott's astronomy profession took the couple to Hawaii, where their son A.J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in 2002.

There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child, while awarding the father “direct and regular” visitation rights, including visitation every other weekend and for the whole month of February each year. App. 9.

Chilean law conferred upon Mr. Abbott what is commonly known as a ne exeat right: a right to consent before Ms. Abbott could take A.J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a (granting a ne exeat right to any parent with visitation rights). In effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott obtained a British passport for A.J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a “ne exeat of the minor” order from the Chilean family court, prohibiting the boy from being taken out of Chile.

In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In February 2006, the mother filed for divorce in Texas state court. Part of the relief she sought was a modification of the father's rights, including full power in her to determine the boy's place of residence and an order limiting the father to supervised visitation in Texas. This litigation remains pending.

Mr. Abbott brought an action in Texas state court, asking for visitation rights and an order requiring Ms. Abbott to show cause why the court should not allow Mr. Abbott to return to Chile with A.J. A. In February 2006, the court denied Mr. Abbott's requested relief but granted him “liberal periods of possession” of A.J. A. throughout February 2006, provided Mr. Abbott remained in Texas. App. 42.

In May 2006, Mr. Abbott filed the instant action in the United States District Court for the Western District of Texas. He sought an order requiring his son's return to Chile pursuant to the Convention and enforcement provisions of the ICARA. In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father's ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. 495 F.Supp.2d 635, 640

.

The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under the Convention because his ne exeat right was only “a veto right over his son's departure from Chile.” 542 F.3d 1081, 1087 (2008)

. The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary definitions of “custody” and noting that ne exeat rights cannot be “ ‘actually exercised’ ” within the meaning of the Convention, Croll held that ne exeat rights are not rights of custody. Id., at 138–141 (quoting Art. 3(b), Treaty Doc., at 7). A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it “provides a parent with decisionmaking authority regarding a child's international relocation.” 229 F.3d, at 146

.

The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003)

; Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit has followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. 933, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).

II

The Convention was adopted in 1980 in response to the problem of international child abductions during domestic disputes. The Convention seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, Treaty Doc., at 7.

The provisions of the Convention of most relevance at the outset of this discussion are as follows:

“Article 3: The removal or the retention of the child is to be considered wrongful where—

“a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

“b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

. . . . .

“Article 5: For the purposes of this Convention—

“a ‘rights of custody’ shall 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;

“b ‘rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

. . . . .

“Article 12: Where a child has been wrongfully removed or retained in terms of Article 3 ... the authority concerned shall order the return of the child forthwith.” Id., at 7, 9.

The Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply. See, e.g., Arts. 4, 12, ibid. A removal is “wrongful” where the child was removed in violation of “rights of custody.” The Convention defines “rights 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), id., at 7. A return remedy does not alter the pre—abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19, id., at 11. The Convention also recognizes “rights of access,” but offers no return remedy for a breach of those rights. Arts. 5(b), 21, id., at 7, 11.

The United States has implemented the Convention through the ICARA. The statute authorizes a person who seeks a child's return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.”

42 U.S.C. §§ 11603(a), (b), (d)

. If the child in question has been “wrongfully removed or retained within the meaning of the Convention,” the child shall be “promptly returned,” unless an exception is applicable. § 11601(a)(4).

III

As the parties agree, the Convention applies to this dispute. A.J. A. is under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question is whether A.J. A. was “wrongfully removed” from Chile, in other words, whether he was removed in violation of a right of custody. This Court's inquiry is shaped by the text of the Convention; the views of the United States Department of State; decisions addressing the meaning of “rights of custody” in courts of other contracting states; and the purposes of the Convention. After considering these sources, the Court determines that Mr. Abbott's ne exeat right is a right of custody under the Convention.

A

“The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)

. This Court consults Chilean law to determine the content of Mr. Abbott's right, while...