Supreme Court Weighs International Child Abduction Laws

BY Alicia Lozano  January 12, 2010 at 3:30 PM EDT

An international custody battle brought the Supreme Court’s attention back to the Hague Convention on International Child Abduction Tuesday morning, 30 years after the convention was established.

At issue is a convention clause that requires a country to return a “wrongfully removed” child from his or her place of residence. The question presented is whether a ne exeat, a writ prohibiting the removal of a person from a country’s borders, qualifies as a right of custody, according to the SCOTUSblog.

In Abbott v. Abbott, Timothy Abbott, a British citizen, and his American wife, Jacquelyn Vaye Abbott, separated while living in Chile. Local family courts granted regular visitation rights to the father, including one full month each summer, according to Children and the Law. In 2004, the Chilean court further ordered that neither parent had the legal right to remove their son from Chile without first notifying the other and getting written authorization from the court.

In late August 2005, Mrs. Abbott took their son, A.J.A, to Texas without obtaining consent from her ex-husband, who eventually discovered their whereabouts through the help of a private detective.

Mr. Abbott brought suit in a Texas federal district court, which ruled that while Mrs. Abbott had violated Chilean law by removing A.J.A from the South American country, she was not in violation of international kidnapping laws: Mr. Abbott’s ne exeat did not qualify as custody rights under the Hague Convention. A circuit court reaffirmed the ruling.

Counsel for Mr. Abbott is calling for the reinterpretation of the ne exeat order as it pertains to the Hague Convention. Two issues are at stake: the right to refuse the other parent’s request to remove a child from his country of residence and the right to determine where a child lives.

Mr. Abbott contends that if the Court rules in favor of his ex-wife, the United States could become a haven for parents seeking to evade messy custody battles in other countries.

Most recently, another high-profile international child abduction case came to a close after years of intense scrutiny. The tale of David Goldman, an American father who had been fighting for the return of his son since 2004, ended on Christmas Eve when the two were finally reunited.

Goldman’s former wife took their child on vacation to her native Brazil and simply never returned. She filed for divorce, and eventually remarried. In 2008, she died during childbirth and her new husband, a lawyer, refused to return Goldman’s son to the United States.

A closely-watched legal battle ensued, culminating with Secretary of State Hillary Clinton urging the Brazilian government to return the 8-year-old boy to his father after more than five years. The two are now living in New Jersey.