Abbott v. Abbott: New Supreme Court Opinion on International Child Abduction

With the ease and speed of international travel and communication constantly evolving and with the globalization of many areas of the economy, it is no surprise that issues of international abduction and child custody are hot topics in the area of family law.

The U.S. Supreme Court recently had the opportunity to address the issue of international abduction in Abbott v. Abbott. The parties in Abbott divorced in Chile. Mother received custody, Father was granted visitation. The Court also entered a ne exeat order, preventing either party from leaving Chile with the child unless both parties agreed. Mother then brought the child to Texas, without Father’s consent. Once Father was able to locate Mother and child, he moved to enforce the ne exeat order, leading to the issue before the Supreme Court.

In the opinion authored by Justice Anthony Kennedy, the Supreme Court examined the applicability of the Hague Convention on Civil Aspects of International Child Abduction in the context of a custodial parent’s violation of a ne exeat order. The Court determined that the otherwise noncustodial Father’s shared authority in determining the child’s residence, conferred by the ne exeat order, was a right of custody under the Hague Convention, thereby sufficient to evoke applicability of the Hague Convention’s enforcement procedures. Although the Supreme Court determined that the Hague Convention’s procedures were applicable, the Supreme Court did not automatically order the child return to Chile. Instead the Court ordered the case remanded for determination by the trial court. We will be watching the Abbott case on remand and post again with the outcome.

As a practical matter, this case underscores the importance in a divorce or modification case of the provisions regarding the child’s passport and the requirements for which parent gets to keep the child’s passport.

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