Abbott v. Abbott
| Decision Date | 16 September 2008 |
| Docket Number | No. 07-50967.,07-50967. |
| Citation | 542 F.3d 1081 |
| Parties | Timothy Mark Cameron ABBOTT, Petitioner-Appellant, v. Jacquelyn Vaye ABBOTT, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Adair Dyer, Jr. (argued), Law Office of Adair Dyer, Austin, TX, for Timothy Abbott.
Karl Edward Hays (argued), Law Offices of Karl E. Hays, Austin, TX, for Jacquelyn Abbott.
Appeal from the United States District Court for the Western District of Texas.
Before KING, WIENER, and ELROD, Circuit Judges.
This case requires us to determine whether ne exeat rights constitute "rights of custody" within the meaning of the Hague Convention. For the reasons set forth below, we hold that they do not. We therefore affirm the district court's judgment.
Petitioner-Appellant Timothy Abbott is a British citizen, and Respondent-Appellee Jacquelyn Abbott is a U.S. citizen. The parties married in November 1992 in England, and their son was born in Hawaii in June 1995. Beginning in 2002, the parties and their minor son resided in La Serena, Chile. After the parties separated in March 2003, they litigated in the Chilean family courts. The mother was awarded custody, and the father was granted visitation rights.
The Chilean courts entered four separate orders. The first, entered in January 2004, provided visitation rights to the father. The second, entered in November 2004, required the parties and their son to undergo private therapy, denied the father's request for custody rights, and granted all custodial rights to the mother. The third, entered in February 2005, expanded the father's visitation rights, including visitation for an entire month of summer vacation. On January 13, 2004, at the mother's request, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent (the "ne exeat order").1
In August 2005, the mother removed the child from Chile without the father's consent. She and the child departed without notice in the midst of disputes over visitation and other issues. Motions were pending before the Chilean family court at the time of the child's removal, but the Chilean court had previously awarded all custody rights to the mother in its November 2004 order. The father hired a private investigator and located his son in Texas. The father then filed suit in the United States District Court for the Western District of Texas and sought an order requiring that the child be returned to Chile pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49.2
The district court held a bench trial in February 2007. The mother conceded that she had violated both the Chilean family court's ne exeat order and a Chilean statute that required the father's authorization before the child could leave Chile. The father argued that the ne exeat order and the statutory ne exeat provision gave him "rights of custody" within the meaning of the Hague Convention.3 The district court denied return of the child, finding that the child's removal from Chile did not constitute a breach of the father's "rights of custody" as defined by the Hague Convention.
We review a district court's interpretation of a treaty de novo. United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir. 2001).
The objects of the Hague Convention are (a) to secure the prompt return of children removed from one party country to another in violation of the Convention's terms; and (b) to ensure that rights of custody and rights of access under the law of one party country are respected in the others. See Hague Convention art. I. Eighty countries are parties to the Hague Convention, which has been in force between the United States and the Republic of Chile at all times relevant to this case. The Hague Convention is implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11611 (1988), in the United States. The ICARA requires that in any action brought under the Hague Convention for the return of a child, the petitioner prove by a preponderance of the evidence that the child in question "has been wrongfully removed or retained within the meaning of the Convention." Id. at § 11603(e)(1)(A).
Article 3 of the Hague Convention provides as follows:
The removal or the retention of a child is to be considered wrongful where—
a) it is in breach of rights of custody attributed to a person . . ., 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.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Hague Convention art. III (emphasis added). Thus, the Hague Convention provides the remedy of return of a child only if the child's removal from the country breached "rights of custody attributed to a person." Id. The Hague Convention specifically distinguishes between "rights of custody" and "rights of access":
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.
Hague Convention art. V. The remedy of return is available only for a violation of "rights of custody" under the Hague Convention, and that term is defined to include, "in particular, the right to determine the child's place of residence." Id.
The dispositive question in the present case is whether the father possessed "rights of custody" as defined by the Hague Convention.
A Chilean statute concerning the departure of minors from Chile provides that if a non-custodial parent has visitation rights that parent's authorization is required before the custodial parent can take the child out of the country (although a custodial parent may apply to the court for permission to remove the child for an authorized period of time).4 The mother conceded that she violated the ne exeat order by unilaterally removing the parties' son. The district court correctly found that the Chilean statute "does not confer rights distinguishable in any significant way from those conferred by the Chilean court's ne exeat order." Abbott v. Abbott, 495 F.Supp.2d 635, 638 n. 3 (W.D.Tex.2007). Therefore, in this analysis, any rights accruing to the father under the ne exeat order will be treated the same as rights accruing under the statutory ne exeat provision.
Three federal appellate courts have determined that ne exeat orders and statutory ne exeat provisions do not create "rights of custody" under the Hague Convention. See Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir.2002); Croll v. Croll, 229 F.3d 133, 138-39 (2d Cir.2000). One federal appellate court, however, has reached the opposite conclusion.5 See Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir.2004). The issue is one of first impression in the Fifth Circuit.
In Croll, the custodial mother removed the parties' child from Hong Kong without the consent of the child's father in violation of a Hong Kong court's custody order. The Second Circuit considered whether a ne exeat clause in the custody order coupled with rights of access (visitation) conferred "rights of custody" within the meaning of the Hague Convention. 229 F.3d at 135. Recognizing that it was the first federal appellate court to consider the issue, the Second Circuit engaged in an exhaustive analysis of the purpose and design of the Hague Convention, its wording, the intent of its drafters and the case law of other signatory states. Id. at 137. The Croll court considered the ordinary meaning of the phrase "rights of custody" and determined that the Hague Convention referred to a bundle of rights relating to custody, such that possessing only one of the rights did not amount to having "rights of custody." Id. at 138-39.
The Second Circuit's analysis is consistent with the emphasis the Hague Convention places on "the right to determine the child's place of residence" because a ne exeat veto right is only a partial power—in other words, only one of a bundle of residence-determining rights. The Croll court stated that this "single veto power, even if leveraged, falls short of conferring a joint right to determine the child's residence, particularly since an earlier clause in the custody order awards `custody[,] care and control' solely to the mother." Id. at 139-40. The mother had the right to choose where the child would live within Hong Kong, and the father had no control over her choice. Furthermore, although the father could refuse to consent to the child's removal from Hong Kong, he could not require that the child live in another country; thus, he had only a veto right over the child's removal from Hong Kong rather than an affirmative right to determine the child's residence.
While recognizing that the mother's violation of the Hong Kong order had frustrated the father's visitation rights, the Second Circuit refused to judicially amend the Hague Convention's "explicit textual distinction between rights of custody and rights of access." Id. at 142. The court held that the Hague Convention's remedy of return is available only if rights of...
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Abbott v. Abbott
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