Abbott v. Abbott: Argument Preview

The following argument preview for Abbott v. Abbott (08-645) was written by Jonathan Eisenman, an associate at Akin Gump. Check the Abbott SCOTUSwiki page for updates later.  [NOTE: Howe & Russell is counsel for the petitioner in this case.  This is a rare circumstance on SCOTUSblog in which the author of case coverage is a lawyer from a law firm involved in the case.  This post, however, does not take a position favoring either petitioners or respondents.]

On the heels of the recent return from Brazil of Sean Goldman, the victim of a heavily publicized international child abduction, the Court is set to hear argument in Abbott v. Abbott, a case arising out of the alleged abduction of a child referred to as “A.J.A.” from Chile to the United States.  The question in the case is whether one parent’s “ne exeat right” – the right to prevent the child’s departure from the country – is a “right of custody” the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”), so that a child taken in violation of that right must be returned.  If the ne exeat clause gives A.J.A.’s father a right of custody under the Convention, then the United States must return A.J.A. to Chile.

Background

Timothy Abbott, a British citizen, married Jacquelyn Vaye Abbott in Hawaii in 1992.  Their son, A.J.A., was born in Hawaii in 1995.  The family moved to Chile; while there, Mr. and Mrs. Abbott separated.  Litigation over custody of A.J.A. began in Chilean family court, with Mrs. Abbott initially awarded daily care and control over A.J.A.  Mr. Abbott could visit A.J.A. every other weekend, for one evening a week, and for one month of A.J.A.’s summer vacation.

On January 13, 2004, the Chilean family court entered an order decreeing the “ne exeat” of the child.  In addition, upon the couple’s separation, a Chilean statute granted Mr. Abbot a ne exeat right as a parent with visitation rights.  His decision could be overridden, however, if a court deemed it unreasonable.

In July 2005, Mr. Abbott petitioned the Chilean family court to expand his parental rights to A.J.A.  A hearing was scheduled for early September; however, in late August, Mrs. Abbott removed A.J.A. to Texas without Mr. Abbott’s consent.

Mr. Abbott brought suit in federal court seeking A.J.A.’s return to Chile under the Hague Convention, which subject to certain exceptions requires the return of a child when the child is removed from his country of “habitual residence,” “in breach of rights of custody . . . attributed under the law of the State in which the child was habitually resident immediately before [his] removal.”  The Convention further requires that the breached right be one that was actually exercised at the time of the child’s removal, or one that would have been exercised, had the child not been removed.

The district court declined to order A.J.A.’s return, finding that the ne exeat order did not give Mr. Abbott a right of custody within the meaning of the Convention.  The Fifth Circuit affirmed.

Petition for Certiorari

In finding that a ne exeat right does not provide a right of custody, the Fifth Circuit aligned itself with the Second, Fourth, and Ninth Circuits.  Notably, in the Second Circuit—the first court of appeals to opine on the question—now-Justice Sotomayor dissented, and would have held that a ne exeat order does provide a right of custody under the Convention.  The Eleventh Circuit also took the position that a ne exeat order provides a right of custody.

The Court sought the view of the Solicitor General on whether to grant Mr. Abbott’s petition; the Solicitor General recommended a grant and subsequently filed an amicus brief in support of Mr. Abbott.  The SG’s office also sought, and received, permission to participate in tomorrow’s oral argument.  Assistant Solicitor General Ginger Anders will divide time with Mr. Abbott’s counsel, Amy Howe.

Merits

At its core, Mr. Abbott’s argument is about the Convention’s function:  If the Hague Convention is meant to prevent international child abduction by a non-custodial parent, it makes little sense to interpret it as not requiring a child’s return when one parent violates a ne exeat order, frustrating the process of adjudicating custody in the first place.

According to Mr. Abbott, a sensible interpretation of the Convention requires viewing a ne exeat order as vesting both parents with a shared right of custody:  the right to refuse, within reason, the other parent’s request to remove the child from his place of habitual residence.  Mr. Abbott furthers that argument by observing that the Convention defines “rights of custody” as including, “in particular, the right to determine the child’s residence.”  Because a ne exeat order gives a parent the right to veto moving the child out of his country of habitual residence, Mr. Abbott argues, the order confers a right of custody within the very definition provided by the Convention—a right he would have exercised had he known of Mrs. Abbott’s intention to remove A.J.A. from Chile.

Mr. Abbott contends that should the Court find otherwise, it would make the United States a haven for parents seeking to evade custody determinations in the country of their children’s habitual residence.  Such parents could remove their children to the United States in violation of a ne exeat order without fear that doing so would trigger the Convention’s requirement that the United States return the child.

Mr. Abbott concludes by observing that other countries courts’, after the Convention’s adoption, have treated a ne exeat order as creating a right of custody under the Convention; moreover, there is evidence from the Convention’s drafting history that a ne exeat order was intended by the drafters to be implicitly within the scope of the term “right of custody.”

The Solicitor General’s brief in support of Mr. Abbott brings to bear the State Department’s view, as the agency whose Office of Children’s Issues is the United States’ Central Authority under the Convention, that a ne exeat order confers a right of custody on Mr. Abbott.

In response, Mrs. Abbott argues that at most, a ne exeat order protects Mr. Abbott’s right of access, i.e., his visitation rights, to A.J.A.  Under the Convention the violation of a right of access, unlike the violation of a right of custody, does not give rise to the obligation that a signatory return a child to his place of habitual residence.  In contrast to Mr. Abbott’s functional argument, Mrs. Abbott argues that Mr. Abbott has no formal right of custody under Chilean law—he only had visitation rights when Mrs. Abbott left Chile—and that the ne exeat order serves only to protect the Chilean courts’ jurisdiction over A.J.A., not to confer a right on Mr. Abbott.  This point is affirmed, according to Mrs. Abbott, by the fact that any objection to A.J.A.’s removal could be overridden by the court that issued the ne exeat order.

Attacking Mr. Abbott’s argument that his right to prevent A.J.A. from leaving Chile is a right to determine A.J.A’s place of residence, Mrs. Abbott contends that the right to determine A.J.A.’s place of residence cannot be divorced from other criteria associated with a right of custody, e.g., the responsibility for providing the child with food, shelter, clothing, guidance, healthcare, and an education.  As A.J.A.’s parent with physical custody, it was Mrs. Abbott’s obligation to provide those things, giving her an unshared right of custody over A.J.A.  Moreover, Mrs. Abbott interprets “place of residence” to mean A.J.A.’s immediate living quarters, not his country of residence; it follows, per Mrs. Abbott, that the Convention’s definition of “right of custody” turns “particularly” on the right to designate a child’s immediate living quarters.  Accordingly whether Mr. Abbott had some kind of right under the ne exeat order is irrelevant, because it was not a right to determine A.J.A.’s habitual place of residence—his immediate living quarters—and thus not a right of custody.

Mrs. Abbott then turns her attention to the Convention’s drafting, observing its travaux preparatoires (“preparatory works”) indicate that the treaty’s purpose is to protect custody rights under a signatory’s law.  Because, Mrs. Abbott argues, a ne exeat order does not create a custody right under Chilean law—it merely serves to protect other rights—the Convention did not contemplate the return of a child removed from a country in violation of a ne exeat order.

Further, Mrs. Abbott claims that the travaux contemplate rights that are “actually exercised” to mean those exercised in the day-to-day care of the child, for which Mrs. Abbott was responsible.  Mrs. Abbott then argues that a proposal to explicitly extend the Convention’s return-requirement to ne exeat orders was rejected at the Convention’s negotiation, and that there is no dispositive quantum of legal authority from other signatories to show that a ne exeat order is widely seen as within the scope of the return-requirement.  Supporting this point, Mrs. Abbott points to an observation that the original Convention would preserve custody rights, and was not meant to protect any signatory’s jurisdiction over a child.  However, when the Convention was revisited in 1996 , a “framework” meant to protect signatories’ jurisdiction over a child was included—but neither the United States nor Chile signed on to the 1996 Convention.  Mrs. Abbott reads this as an affirmative rejection by both countries of the view that ne exeat orders provide rights of custody under the Convention.