Posts tagged ‘Abbott v. Abbott’
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…
Child abductions and treaty interpretation
Private international law is, of course, a huge topic. A leisurely flip through the 1390 pages of Cheshire and North’s comprehensive text reveals the subject’s breadth. As society becomes more mobile and borders more porous, e.g. the European Union, private international law will only likely continue to grow.
One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog). Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote. The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.
The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile. The cases focuses on the ne exeat issue under the Convention.
Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without…
