International abduction or infringement on custody?

On January 23, 2010, Abbott v. Abbott, 542 F.3d 1081, 1082 (5th Cir. 2008), cert granted , 129 S. Ct. 2859 (2009) was argued in the US Supreme Court.  As part of a divorce in Chile, the judge gave a “ne exeat order” which prohibited either parent from removing the child from Chile without the agreement of both parents.  Mother was granted custody and father was granted visitation rights.  Mother then moved to the United States with the child without father’s agreement.  Father claimed that the order was a part of his custody rights under the Hague Convention.  A finding for him would require the United States to return the child who had been “wrongfully removed” from his country of habitual residence, in this case Chile.

Mother argued that the order only gave the father a right of access and would not require a return to Chile.

Various groups weighed in including those who argued that the standard should be what was in the best interest of the child and those who wanted to safeguard the effective cooperation of participant countries in the Hague Convention.  The result would also hinge on the choice of law:  the one arising from the Convention or out of a particular country’s law.

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