BY Todd M. Heine
FILED UNDER
Family
Private International Law
TAGS
Abbott v. Abbott, Hague Convention on International Child Abduction, ne exeat order
Ne Exeat Provisions as Rights of Custody: A Burden on Single Mothers Under the Hague Abduction Convention?
As I have posted in a previous Legal Frontiers entry, many nations recognize ne exeat provisions as rights of custody under the Hague Convention on the Civil Aspects of International Child Abduction. In last term’s Abbott v. Abbott case, the U.S. Supreme Court interpreted ne exeat provisions as “rights of custody” in international family law in the U.S. In doing so, the Court expressly rejected the opposite view that the Supreme Court of Canada twice embraced in dicta–a view that arguably provides more protection for single mothers.
Ne exeat provisions exist in statutes or court orders and forbid one parent from removing a child from a country without the other parent or a court’s consent. These provisions protect children and parents by ensuring the other parent will be able to exercise custody and access rights. These provisions also preserve a court’s jurisdiction to decide and modify legal issues like custody, child support, and protective orders.
If a parent violates a ne exeat provision and removes a child from one country without the other parent or a court’s consent, the courts in another country may immediately return the child to the previous country based on the Hague Convention on the Civil Aspects on International Child Abduction. Many courts have interpreted ne exeat provisions as providing rights of custody–even when the ne exeat provision applies for an otherwise non-custodial parent. Because the Hague Abduction Convention provides returns for parents with rights of custody, courts that interpret ne exeat provisions as rights of custody will return children based solely on ne exeat provisions, as the U.S. Supreme Court posited in Abbott.
While scholars, advocates, and the Hague Conference on Private International Law advocated for this position, few have recognized its burdens on single mothers.
Single mothers bear unique burdens related to ne exeat provisions. The vast majority of single parents are women. As a group, women earn less than men. This means that women have more responsibility in child-rearing and less income to do so.
In some countries, ne exeat provisions will trap these single mothers. This is because ne exeat provisions often exist under national laws, providing a default travel restriction for all parents, regardless of child custody arrangements. Even though a mother may be the sole guardian of the child, the non-custodial father will retain a ne exeat power to limit the mother’s ability to take the child out of country. Despite her enormous responsibility as a parent and provider, a single mother who wishes to leave the country must seek permission from the father or the courts.
Such permission-seeking is at best inconvenient and at worst dangerous. While some fathers will cooperatively give permission for the mother to leave the country with the child, many other fathers will not. In those instances, many overburdened single mothers will have to take legal action.
The legal community knows what this means–hiring a lawyer and going to court. That is, single mothers will have to spend time and money. Of course in countries where women face tough conditions, this inconvenience will require time, money, and institutional awareness that single mothers might not have.
Seeking permission might also prove dangerous. Consider a mother who has left an abusive partner and secured full custody over their child. Now, she will have to approach the father or a court to leave the country, perhaps to pursue a job, education, family support, or a new relationship. When she confronts her former abuser however, she might encounter a violent response from the abusive father if he perceives that the mother is trying to further take away his power.
True, the Hague Convention provides an exception for returns when a return poses a grave risk of physical or psychological harm to the child. But courts construe this exception narrowly, focusing solely on the risk to the child – not the risk to the mother.
Courts essentially will examine whether child protective services in the country of habitual residence could protect the child. As most nations offer some form of child protection, this exception rarely applies. As a result, forcing custodial mothers to seek permission to leave a country with their child will leave many single mothers trapped. With these institutional hurdles, the interpretation of a ne exeat order as rights of custody burdens single mothers.
Moreover, interpreting ne exeat provisions as rights of custody is problematic jurisprudentially. While many courts have (questionably) judicially defined ne exeat provisions as “rights related to the care of the person of the child” under the Hague Abduction Convention, any bon père de famille knows that a sole custodial mother provides her child’s care.
With these cases in hand though, future litigants may further expand the definition to other inchoate rights that parents have. In a recent Irish Supreme Court case, the court referred a question to the Court of Justice of the European Union for a preliminary ruling on whether a father’s un-exercised right to apply for paternity was an inchoate right of custody under the EU law Brussels IIbis that mirrors the Hague Abduction Convention. As ever, litigants will creatively try to further expand such tenuous legal interpretations. Otherwise stated, we stand at the edge of a slippery slope.
For now, I offer a few suggestions. First, in countries like Canada where the issue has not been directly decided, advocates and judges should consider ne exeat provisions’ effects on single mothers.
Second, courts should be wary of further expanding other inchoate rights as rights of custody under the Hague Abduction Convention.
Finally, legislatures and courts in all Hague Abduction Convention countries should carefully consider whether to provide default ne exeat provisions in national laws and whether to include ne exeat orders in custody agreements.
While ne exeat provisions now burden mothers in many legal systems, advocates and courts must carefully consider the practical effects of expanding rights of custody.
Todd M. Heine spent spring 2010 at McGill while pursuing a joint-J.D./LL.M./Master 2 Droit from Vermont Law School and Universite de Cergy-Pontoise. He holds a certificate from the University of Chicago and a B.A. in German from Longwood University. Todd is primarily interested in family issues all across the globe, regularly maintaining a blog about international family law.
3 Responses to “Ne Exeat Provisions as Rights of Custody: A Burden on Single Mothers Under the Hague Abduction Convention?”
Wonderful article!
Hopefully there will be an amendment one day to the Hague Convention allowing domestic abuse as a reason to flee a country of residence with our children as asking the abusive husband/father is absolutely not an option.
I filed for divorce and was given custody of the three kids. I then fled to my parents in Ohio as he had continued to stalk and threaten us.
He first filed for a reverse of custody in Luxembourg where we had lived and then filed with the Hague Convention to have the children returned.
While there may be a stipulation that “when a return poses a grave risk of physical or psychological harm to the child” a judge can decide not to send the children back- it is often the case.
In my case the 3 kids were sent back to their father even though social workers and psychologists testified that they would certainly be at risk of physical or psychological harm if sent to him…the police were at the house no fewer than 4 times in the first 6 months and it took me 5 years of court battles to get my three kids back.
I pray that one day the law will protect women and children from going through what we are continuing to suffer.
I was very disappointed with this article. in light of the response of Mrs. Zahlen, there is misunderstanding of the ne exeat right. This right is first and formost protecting the left behind parent, who may have a bad relationship with his (former) partner but still loves and cares for his children. As stated above there are stipulations that restict the return, and if this was not implemented you can only turn and blame the judge who thought that your arguments were not enough.
furthermore, Likely is not factual, and therefore before blaming the Hague Convention, which is a last resort to thousands of left behind parents, I would advise people to provide hard fact evidence, which to my opinion no judge would turn down.
this is not a legal advise, just something to think about before jumping the gun.
The ruling on Abbott vs. Abbott was instrumental, since US courts have little regard to the meaning of the Hague Convention, and as such becoming the most disregard and disrespectful legal institutions upon the Treaty Signatories.
I am also involved in a case were my spouse is holding my child with disregard to the ne exeat righ, as a left behind parent this is very tormenting.
The US in not exactly the bastion of protecting women. Most countries will not allow bail on cases that in the US courts are daily routine. I would advise the writer to do some in- depth research before placing such an opinion.
The ne exeat righ allows a single mother to live anywhere in the country. It is not necessary to leave the country. If this practice would be accepted, then any excuse of “fear” from the Male partner would open the door to leave the country, leaving the left behind father estranged from his child.
Sorry, but this article is not addressing the problem. You don’t repair a wrong by creating another wrong.
Thank you for your comment Martin. You note that the ne exeat order first and foremost protects the non-custodial parent. I agree–and see this as its major problem.
You see, under what is likely customary international law, courts must consider the best interests of the child in any court proceeding involving children–not the best interests of non-custodial parents. (See, e.g., Convention on the Rights of the Child and European Court of Human Rights case law). In addition, the Convention aims to protect the best interests of children.
When a foreign court or a default statutory rule includes a ne exeat provision, this may not always respect the best interests of the child. Indeed, in cases like Abbott, a statutory provision–not a judge–provides a default ne exeat provision.
I do not think that the U.S. is becoming one of the most disrespectful legal institutions among Convention signatories. My extensive review of the Convention’s U.S. case law (and foreign case law) reveals a relatively consistent record of enforcement and common law interpretation. For example, the decision in Abbott found rights of custody in the ne exeat provision based in part on deference to foreign nations’ similar interpretations.
Thank you for your advice on in-depth research regarding rights of women in the U.S. I have not touted the U.S. as “a bastion of protecting women.” The constitutional right to bail does not offer a carte blanche for domestic violence defendants. Rather, harsh criminal penalties attach to no-contact order violators. Nonetheless, I would welcome your suggestions for global policy considerations to better protect all domestic violence victims–women, children, elderly, disabled, and men alike.
As regards to free movement with in a country, you are not fully correct that ne exeat orders allow this. In fact, many domestic courts require permission to even take children out of a local jurisdiction. And while the massive U.S. territory allows great movement under the Convention standard, a smaller country (say, Luxembourg) does not.
Finally, I can offer several practical suggestions to protect non-custodial parents (the simplest being to surrender the children’s passports). However, this was not the focus of my blog post. Instead, I maintain that a broad interpretation of rights of custody is risky jurisprudence in a common law system.