Divining the purpose of a treaty on child abduction

The following is a recap of Tuesday’s oral argument in Abbott v. Abbott (08-645).  To see earlier coverage of the case, check its SCOTUSwiki case page.  [Note: Howe & Russell represents the petitioner in the case, and a lawyer from that law firm argued on his behalf before the Court.]

During oral argument in Abbott v. Abbott, the Court grappled with complex questions – about the nature of rights, the best interests of children and families, and the interpretation of international treaties – that broke down traditional alignments on the Court.  If the argument had a common theme, it was understanding the reasoning behind the Hague Convention on the Civil Aspects of International Child Abduction.

The case is a dispute between respondent Jacquelyn Abbott, who moved her son from Chile to the United States, and her estranged husband, petitioner Timothy Abbott, who wants the child returned to Chile.  Mr. Abbott contends that a Chilean law granting him a “ne exeat” right – the right of one parent to veto the other’s removal of their child from the country – amounts to a “right of custody” within the meaning of the Hague Convention.  If Mr. Abbott is correct, then the Convention requires that the child be returned to Chile.

Amy Howe, counsel for Mr. Abbott, began by arguing that the purpose of the Hague Convention was to ensure that the fate of a child is decided by a court in his country of “habitual residence,” not by one parent’s choice to flee beyond that court’s jurisdiction.

But one scenario itched at Justice Breyer that he raised repeatedly during the argument: What if the custodial parent – presumably the one with whom the child would be better off – is the one who moves the child abroad and the non-custodial parent is the one requesting return?   In particular, what if that non-custodial parent is akin to a “Frankenstein’s monster” whom the family-law judge denied any rights over the child?   If the Convention grants such a parent custody rights, Breyer insisted he could not see the “humane purpose” behind it.

By the end of the petitioner’s argument, Chief Justice Roberts and Justices Sotomayor and Ginsburg, at least, seemed satisfied that, in such exceptional circumstances, the Convention would allow a parent to escape abroad with their child.  To this end, Justice Ginsburg asked Howe whether a mother who has fled the country with her child and fears for the child’s welfare if it is returned to the father has any recourse.  Howe described two options for the mother, one ex post, the other ex ante: (1) she could seek a defense under Article 13(b) of the Convention – which exempts cases when the child faces a “grave risk of physical or psychological harm” upon return – or (2) she could ask a Chilean court for permission to leave the country without the father’s consent.

Assistant to the Solicitor General Ginger Anders, arguing for the United States as an amicus in support of Mr. Abbott, stressed that the Convention presumes the “country of habitual residence” is best placed to decide the good of the child.  Both she and Howe frankly admitted that, under this standard, the Convention would usually require the return of children removed from a country without the consent of both parents.   However, Anders said, the Convention leaves some flexibility: it says nothing about which parent the child must live with, or which country the child will spend the rest of its life in.  Justice Sotomayor seemed quite taken by this angle on the case.

Going back to the issue of exceptional cases, Justice Breyer fretted that the “grave risk” of harm would not encompass risks to the mother’s physical or psychological health.  He wondered whether it was humane to require a mother with an advanced degree to stay in a country where she cannot find work in order to live with her child.  Anders offered that distress of the mother would probably harm the child’s psychological health and would therefore, secondarily, qualify as an Article 13(b) defense.

Karl Hays, arguing on behalf of Mrs. Abbott, asserted that a right of custody is distinct from a right of access, or visitation.  Mr. Abbott was awarded visitation by the Chilean court, but his additional statutory ne exeat power does not amount to a new right for him.  Rather, it amounts to a limitation on the exercise of Mrs. Abbott’s pre-existing custody right.  Justice Kennedy immediately deemed this an “artificial approach,” because either minimal visitation rights or complete custody rights could be construed as a mere “limitation” on the right of the other parent.

Justices across the bench questioned Hays’s contention that, when the Convention drafters wrote “right of custody,” they had in mind the right to determine the child’s place of residence – i.e., the address at which the child lives.  Justice Alito – implying that the country a child lives in is a critical part of its residence – asked a series of questions probing why the right to determine the address of the child is a right of custody but the power to determine its nationality is not.  Finally, he just asked, “Which is more important, determining the house in which the child is going to live or determining the country in which the child is going to live?”

Hays insisted that a parent left behind could resort to the legal system of the country where the child was taken – using laws such as the Uniform Child Custody Jurisdiction and Enforcement Act in the United States – to seek enforcement of their existing rights of access or custody.  Justice Scalia dismissed that argument, scoffing, “If these local remedies were effective, we wouldn’t have a treaty.”

The main concern Justice Scalia raised throughout the argument was the need for “uniform interpretation” of the Convention.  Scalia’s question about how foreign courts had construed the Convention’s phrase “right of custody” sparked a bench-wide effort to tally the courts that had ruled one way or the other.

In the closing minutes of the argument, Justice Kennedy asked Hays why Mrs. Abbott had not availed herself of the alternative Howe earlier suggested: simply asking the Chilean court to leave with her son.  His argument time running out, Hays replied simply, “I don’t know.”