OPINION OF THE COURT
ABBOTT V. ABBOTT
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-645
TIMOTHY MARK CAMERON ABBOTT, PETITIONER
v.
JACQUELYN VAYE ABBOTT
on writ of certiorari to the united states court of
appeals for the fifth circuit
[May 17, 2010]
Justice Kennedy delivered the
opinion of the Court.
This case presents, as it has
from its inception in the United States District Court, a question
of interpretation under the Hague Convention on the Civil Aspects
of International Child Abduction (Convention), Oct. 24, 1980,
T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The
United States is a contracting state to the Convention; and
Congress has implemented its provisions through the International
Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.
S. C. §11601
et seq. The Convention provides that a
child abducted in violation of “rights of custody” must be returned
to the child’s country of habitual residence, unless certain
exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, at 7 (Treaty
Doc.). The question is whether a parent has a “righ[t] of custody”
by reason of that parent’s
ne exeat right: the
authority to consent before the other parent may take the child to
another country.
I
Timothy Abbott and Jacquelyn Vaye
Abbott married in England in 1992. He is a British citizen, and she
is a citizen of the United States. Mr. Abbott’s astronomy
profession took the couple to Hawaii, where their son
A. J. A. was born in 1995. The Abbotts moved to La
Serena, Chile, in 2002. There was marital discord, and the parents
separated in March 2003. The Chilean courts granted the mother
daily care and control of the child, while awarding the father
“direct and regular” visitation rights, including visitation every
other weekend and for the whole month of February each year. App.
9.
Chilean law conferred upon Mr.
Abbott what is commonly known as a
ne exeat right: a
right to consent before Ms. Abbott could take A. J. A.
out of Chile. See Minors Law 16,618, art. 49 (Chile), App. to Pet.
for Cert. 61a (granting a
ne exeat right to any
parent with visitation rights). In effect a
ne exeat
right imposes a duty on one parent that is a right in the other.
After Mr. Abbott obtained a British passport for
A. J. A., Ms. Abbott grew concerned that Mr. Abbott would
take the boy to Britain. She sought and obtained a
“
ne exeat of the minor” order from the Chilean family
court, prohibiting the boy from being taken out of Chile.
In August 2005, while proceedings before the
Chilean court were pending, the mother removed the boy from Chile
without permission from either the father or the court. A private
investigator located the mother and the child in Texas. In February
2006, the mother filed for divorce in Texas state court. Part of
the relief she sought was a modification of the father’s rights,
including full power in her to determine the boy’s place of
residence and an order limiting the father to supervised visitation
in Texas. This litigation remains pending.
Mr. Abbott brought an action in Texas state
court, asking for visitation rights and an order requiring Ms.
Abbott to show cause why the court should not allow Mr. Abbott to
return to Chile with A. J. A. In February 2006, the court
denied Mr. Abbott’s requested relief but granted him “liberal
periods of possession” of A. J. A. throughout February
2006, provided Mr. Abbott remained in Texas. App. 42.
In May 2006, Mr. Abbott filed the instant
action in the United States District Court for the Western District
of Texas. He sought an order requiring his son’s return to Chile
pursuant to the Convention and enforcement provisions of the ICARA.
In July 2007, after holding a bench trial during which only Mr.
Abbott testified, the District Court denied relief. The court held
that the father’s
ne exeat right did not constitute a
right of custody under the Convention and, as a result, that the
return remedy was not authorized. 495 F. Supp. 2d 635, 640.
The United States Court of Appeals for the
Fifth Circuit affirmed on the same rationale. The court held the
father possessed no rights of custody under the Convention because
his
ne exeat right was only “a veto right over his son’s
departure from Chile.” 542 F. 3d 1081, 1087 (2008). The court
expressed substantial agreement with the Court of Appeals for the
Second Circuit in
Croll v.
Croll, 229 F. 3d
133 (2000). Relying on American dictionary definitions of “custody”
and noting that
ne exeat rights cannot be
“ ‘actually exercised’ ” within the meaning of the
Convention,
Croll held that
ne exeat rights
are not rights of custody.
Id., at 138–141 (quoting Art.
3
(b), Treaty Doc., at 7). A dissenting opinion in
Croll was filed by then-Judge Sotomayor. The dissent
maintained that a
ne exeat right is a right of
custody because it “provides a parent with decisionmaking authority
regarding a child’s international relocation.” 229
F. 3d
, at 146.
The Courts of Appeals for the Fourth and Ninth
Circuits adopted the conclusion of the
Croll majority. See
Fawcett v.
McRoberts, 326 F. 3d 491, 500
(CA4 2003);
Gonzalez v.
Gutierrez, 311 F. 3d
942, 949 (CA9 2002). The Court of Appeals for the Eleventh Circuit
has followed the reasoning of the
Croll dissent.
Furnes v.
Reeves, 362 F. 3d 702, 720,
n. 15 (2004). Certiorari was granted to resolve the conflict.
557 U. S. ___ (2009).
II
The Convention was adopted in
1980 in response to the problem of international child abductions
during domestic disputes. The Convention seeks “to secure the
prompt return of children wrongfully removed to or retained in any
Contracting State,” and “to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States.” Art. 1, Treaty Doc., at
7.
The provisions of the Convention
of most relevance at the outset of this discussion are as
follows:
“Article 3: The removal or the retention of the
child is to be considered wrongful where—
“
a it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone,
under the law of the State in which the child was habitually
resident immediately before the removal or retention; and
“
b at the time of removal or retention those rights
were actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.
. . . . .
“Article 5: For the purposes of this
Convention—
“
a ‘rights of custody’ shall include rights relating to
the care of the person of the child and, in particular, the right
to determine the child’s place of residence;
“
b ‘rights of access’ shall include the right to take a
child for a limited period of time to a place other than the
child’s habitual residence.
. . . . .
“Article 12: Where a child has been wrongfully
removed or retained in terms of Article 3 … the authority concerned
shall order the return of the child forthwith.”
Id., at 7,
9.
The Convention’s central
operating feature is the return remedy. When a child under the age
of 16 has been wrongfully removed or retained, the country to which
the child has been brought must “order the return of the child
forthwith,” unless certain exceptions apply. See,
e.g.,
Arts. 4, 12,
ibid. A removal is “wrongful” where the child
was removed in violation of “rights of custody.” The Convention
defines “rights of custody” to “include rights relating to the care
of the person of the child and, in particular, the right to
determine the child’s place of residence.” Art. 5
(a),
id., at 7. A return remedy does not alter the
pre&nbhyph;abduction allocation of custody rights but leaves
custodial decisions to the courts of the country of habitual
residence. Art. 19,
id., at 11. The Convention also
recognizes “rights of access,” but offers no return remedy for a
breach of those rights. Arts. 5
(b), 21,
id., at
7, 11.
The United States has implemented the
Convention through the ICARA. The statute authorizes a person who
seeks a child’s return to file a petition in state or federal court
and instructs that the court “shall decide the case in accordance
with the Convention.” 42 U. S. C. §§11603(a), (b), (d). If the
child in question has been “wrongfully removed or retained within
the meaning of the Convention,” the child shall be “promptly
returned,” unless an exception is applicable. §11601(a)(4).
III
As the parties agree, the
Convention applies to this dispute. A. J. A. is under 16
years old; he was a habitual resident of Chile; and both Chile and
the United States are contracting states. The question is whether
A. J. A. was “wrongfully removed” from Chile, in other
words, whether he was removed in violation of a right of custody.
This Court’s inquiry is shaped by the text of the Convention; the
views of the United States Department of State; decisions
addressing the meaning of “rights of custody” in courts of other
contracting states; and the purposes of the Convention. After
considering these sources, the Court determines that Mr. Abbott’s
ne exeat right is a right of custody under the
Convention.
A
“The interpretation of a treaty,
like the interpretation of a statute, begins with its text.”
Medellín v.
Texas,
552 U. S. 491, 506
(2008). This Court consults Chilean law to determine the content of
Mr. Abbott’s right, while following the Convention’s text and
structure to decide whether the right at issue is a “righ[t] of
custody.”
Chilean law granted Mr. Abbott a joint right
to decide his child’s country of residence, otherwise known as a
ne exeat right. Minors Law 16,618, art. 49 (Chile),
App. to Pet. for Cert. 61a, 62a, provides that “[o]nce the court
has decreed” that one of the parents has visitation rights, that
parent’s “authorization … shall also be required” before the child
may be taken out of the country, subject to court override only
where authorization “cannot be granted or is denied without good
reason.” Mr. Abbott has “direct and regular” visitation rights and
it follows from Chilean law, that he has a shared right to
determine his son’s country of residence under this provision. App.
9. To support the conclusion that Mr. Abbott’s right under Chilean
law gives him a joint right to decide his son’s country of
residence, it is notable that a Chilean agency has explained that
Minors Law 16,618 is a “right to authorize the minors’ exit” from
Chile and that this provision means that neither parent can
“unilaterally” “establish the [child’s] place of residence.” Letter
from Paula Strap Camus, Director General, Corporation of Judicial
Assistance of the Region Metropolitana, to National Center for
Missing and Exploited Children (Jan. 17, 2006), App. to Pet. for
Cert. in
Villegas Duran v.
Arribada
Beaumont, No. 08–775, pp. 35a–37a, cert. pending.
The Convention recognizes that
custody rights can be decreed jointly or alone, see Art.
3
(a), Treaty Doc., at 7; and Mr. Abbott’s joint right to
determine his son’s country of residence is best classified as a
joint right of custody, as the Convention defines that term. The
Convention defines “rights of custody” to “include rights relating
to the care of the person of the child and, in particular, the
right to determine the child’s place of residence.” Art.
5
(a),
ibid. Mr. Abbott’s
ne exeat
right gives him both the joint “right to determine the child’s
place of residence” and joint “rights relating to the care of the
person of the child.”
Mr. Abbott’s joint right to decide A. J. A.’s
country of residence allows him to “determine the child’s place of
residence.” The phrase “place of residence” encompasses the child’s
country of residence, especially in light of the Convention’s
explicit purpose to prevent wrongful removal across international
borders. See Convention Preamble, Treaty Doc., at 7. And even if
“place of residence” refers only to the child’s street address
within a country, a
ne exeat right still entitles Mr.
Abbott to “determine” that place. “[D]etermine” can mean “[t]o fix
conclusively or authoritatively,” Webster’s New International
Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean
“[t]o set bounds or limits to,”
ibid. (1st definition),
which is what Mr. Abbott’s
ne exeat right allows by
ensuring that A. J. A. cannot live at any street addresses outside
of Chile. It follows that the Convention’s protection of a parent’s
custodial “right to determine the child’s place of residence”
includes a
ne exeat right.
Mr. Abbott’s joint right to determine A. J.
A.’s country of residence also gives him “rights relating to the
care of the person of the child.” Art. 5
(a), Treaty Doc.,
at 7. Few decisions are as significant as the language the child
speaks, the identity he finds, or the culture and traditions she
will come to absorb. These factors, so essential to
self-definition, are linked in an inextricable way to the child’s
country of residence. One need only consider the different
childhoods an adolescent will experience if he or she grows up in
the United States, Chile, Germany, or North Korea, to understand
how choosing a child’s country of residence is a right “relating to
the care of the person of the child.” The Court of Appeals
described Mr. Abbott’s right to take part in making this decision
as a mere “veto,” 542 F. 3d, at 1087; but even by that
truncated description, the father has an essential role in deciding
the boy’s country of residence. For example, Mr. Abbott could
condition his consent to a change in country on
A. J. A.’s moving to a city outside Chile where Mr.
Abbott could obtain an astronomy position, thus allowing the father
to have continued contact with the boy.
That a
ne exeat right does not
fit within traditional notions of physical custody is beside the
point. The Convention defines “rights of custody,” and it is that
definition that a court must consult. This uniform, text-based
approach ensures international consistency in interpreting the
Convention. It forecloses courts from relying on definitions of
custody confined by local law usage, definitions that may undermine
recognition of custodial arrangements in other countries or in
different legal traditions, including the civil-law tradition. And,
in any case, our own legal system has adopted conceptions of
custody that accord with the Convention’s broad definition. Joint
legal custody, in which one parent cares for the child while the
other has joint decisionmaking authority concerning the child’s
welfare, has become increasingly common. See Singer, Dispute
Resolution and the Postdivorce Family: Implications of a Paradigm
Shift, 47 Family Ct. Rev. 363, 366 (2009) (“[A] recent study of
child custody outcomes in North Carolina indicated that almost 70%
of all custody resolutions included joint legal custody, as did
over 90% of all mediated custody agreements”); E. Maccoby & R.
Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody
107 (1992) (“[F]or 79% of our entire sample, the [California]
divorce decree provided for joint legal custody”); see generally
Elrod, Reforming the System to Protect Children in High Conflict
Custody Cases, 28 Wm. Mitchell L. Rev. 495, 505–508
(2001).
Ms. Abbott gets the analysis backwards in
claiming that a
ne exeat right is not a right of
custody because the Convention requires that any right of custody
must be capable of exercise. The Convention protects rights of
custody when “at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.” Art. 3
(b),
Treaty Doc., at 7. In cases like this one, a
ne exeat
right is by its nature inchoate and so has no operative force
except when the other parent seeks to remove the child from the
country. If that occurs, the parent can exercise the
ne exeat right by declining consent to the exit or
placing conditions to ensure the move will be in the child’s best
interests. When one parent removes the child without seeking the
ne exeat holder’s consent, it is an instance where
the right would have been “exercised but for the removal or
retention.”
Ibid.
The Court of Appeals’ conclusion that a breach
of a
ne exeat right does not give rise to a return remedy
would render the Convention meaningless in many cases where it is
most needed. The Convention provides a return remedy when a parent
takes a child across international borders in violation of a right
of custody. The Convention provides no return remedy when a parent
removes a child in violation of a right of access but requires
contracting states “to promote the peaceful enjoyment of access
rights.” Art. 21,
id., at 11. For example, a court may
force the custodial parent to pay the travel costs of visitation,
see,
e.g., Viragh v.
Foldes, 415 Mass.
96, 109–111, 612 N. E. 2d 241, 249–250 (1993), or make other
provisions for the noncustodial parent to visit his or her child,
see §11603(b) (authorizing petitions to “secur[e] the effective
exercise of rights of access to a child”). But unlike rights of
access,
ne exeat rights can only be honored with a
return remedy because these rights depend on the child’s location
being the country of habitual residence.
Any suggestion that a
ne exeat right
is a “righ[t] of access” is illogical and atextual. The Convention
defines “rights of access” as “includ[ing] the right to take a
child for a limited period of time to a place other than the
child’s habitual residence,” Art. 5
(b), Treaty Doc., at 7,
and ICARA defines that same term as “visitation rights,” §11602(7).
The joint right to decide a child’s country of residence is not
even arguably a “right to take a child for a limited period of
time” or a “visitation righ[t].” Reaching the commonsense
conclusion that a
ne exeat right does not fit these
definitions of “rights of access” honors the Convention’s
distinction between rights of access and rights of custody.
Ms. Abbott argues that the
ne exeat order in this case cannot create a right of
custody because it merely protects a court’s jurisdiction over the
child. Even if this argument were correct, it would not be
dispositive. Ms. Abbott contends the Chilean court’s
ne exeat order contains no parental consent provision
and so awards the father no rights, custodial or otherwise. See
Brief for Respondent 22; but see 495 F. Supp. 2d, at 638,
n. 3 (the District Court treating the order as containing a
consent provision); 542 F. 3d, at 1084 (same for the Court of
Appeals). Even a
ne exeat order issued to protect a
court’s jurisdiction pending issuance of further decrees is
consistent with allowing a parent to object to the child’s removal
from the country. This Court need not decide the status of
ne exeat orders lacking parental consent provisions,
however; for here the father relies on his rights under Minors Law
16,618. Mr. Abbott’s rights derive not from the order but from
Minors Law 16,618. That law requires the father’s consent before
the mother can remove the boy from Chile, subject only to the
equitable power family courts retain to override any joint
custodial arrangements in times of disagreement. Minors Law 16,618;
see 1 J. Atkinson, Modern Child Custody Practice §6–11 (2d ed.
2009) (“[T]he court remains the final arbiter and may resolve the
[dispute between joint custodians] itself or designate one parent
as having final authority on certain issues affecting the child”);
Lombardo v.
Lombardo, 202 Mich. App. 151, 159,
507 N. W. 2d 788, 792 (1993) (“[W]here the parents as joint
custodians cannot agree on important matters such as education, it
is the court’s duty to determine the issue in the best interests of
the child”). The consent provision in Minors Law 16,618 confers
upon the father the joint right to determine his child’s country of
residence. This is a right of custody under the Convention.
B
This Court’s conclusion that Mr.
Abbott possesses a right of custody under the Convention is
supported and informed by the State Department’s view on the issue.
The United States has endorsed the view that
ne exeat
rights are rights of custody. In its brief before this Court the
United States advises that “the Department of State, whose Office
of Children’s Issues serves as the Central Authority for the United
States under the Convention, has long understood the Convention as
including
ne exeat rights among the protected ‘rights
of custody.’ ” Brief for United States as
Amicus
Curiae 21; see
Sumitomo Shoji America, Inc. v.
Avagliano,
457 U. S. 176, 184–185,
n. 10 (1982) (deferring to the Executive’s interpretation of a
treaty as memorialized in a brief before this Court). It is well
settled that the Executive Branch’s interpretation of a treaty “is
entitled to great weight.”
Id., at 185. There is no reason
to doubt that this well-established canon of deference is
appropriate here. The Executive is well informed concerning the
diplomatic consequences resulting from this Court’s interpretation
of “rights of custody,” including the likely reaction of other
contracting states and the impact on the State Department’s ability
to reclaim children abducted from this country.
C
This Court’s conclusion that
ne exeat rights are rights of custody is further
informed by the views of other contracting states. In interpreting
any treaty, “[t]he ‘opinions of our sister signatories’ … are
‘entitled to considerable weight.’ ”
El Al Israel
Airlines, Ltd. v.
Tsui Yuan Tseng,
525 U. S. 155, 176
(1999) (quoting
Air France v.
Saks,
470 U. S. 392, 404
(1985)). The principle applies with special force here, for
Congress has directed that “uniform international interpretation of
the Convention” is part of the Convention’s framework. See
§11601(b)(3)(B).
A review of the international
case law confirms broad acceptance of the rule that
ne
exeat rights are rights of custody. In an early decision, the
English High Court of Justice explained that a father’s “right to
ensure that the child remain[ed] in Australia or live[d] anywhere
outside Australia only with his approval” is a right of custody
requiring return of the child to Australia.
C. v.
C., [1989] 1 W. L. R. 654, 658 (C. A.).
Lords of the House of Lords have agreed, noting that
C. v.
C.’s conclusion is “settled, so far as the United Kingdom
is concerned” and “appears to be the majority [view] of the common
law world.” See
In re D (A Child), [2007] 1 A. C.
619, 628, 633, 635 (2006).
The Supreme Court of Israel follows the same
rule, concluding that “the term ‘custody’ should be interpreted in
an expansive way, so that it will apply [i]n every case in which
there is a need for the consent of one of the parents to remove the
children from one country to another.” CA 5271/92
Foxman
v.
Foxman, [1992], §§3(D), 4 (K. Chagall transl.). The
High Courts of Austria, South Africa, and Germany are in accord.
See Oberster Gerichtshof [O. G. H.] [Supreme Court] Feb.
5, 1992, 2 Ob 596/91 (Austria) (“Since the English Custody Court
had ordered that the children must not be removed from England and
Wales without the father’s written consent, both parents had, in
effect, been granted joint custody concerning the children’s place
of residence”);
Sonderup v.
Tondelli, 2001(1) SA
1171, 1183 (Constitutional Ct. of South Africa 2000) (“[The
mother’s] failure to return to British Columbia with the child …
was a breach of the conditions upon which she was entitled to
exercise her rights of custody and … therefore constituted a
wrongful retention … as contemplated by [Article 3] of the
Convention”); Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court of Germany] July 18, 1997, 2 BvR 1126/97, ¶15
(the Convention requires a return remedy for a violation of the
“right to have a say in the child’s place of residence”). Appellate
courts in Australia and Scotland agree. See
In the Marriage of
Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶18–27;
A.
J. v.
F. J., [2005] CSIH 36, 2005 1 S. C. 428,
435–436.
It is true that some courts have stated a
contrary view, or at least a more restrictive one. The Canadian
Supreme Court has said
ne exeat orders are “usually
intended” to protect access rights.
Thomson v.
Thomson, [1994] 3 S. C. R. 551, 589–590, 119
D. L. R. (4th) 253, 281; see
D. S. v.
V.
W., [1996] 2 S. C. R. 108, 134 D. L. R.
(4th) 481. But the Canadian cases are not precisely on point here.
Thomson ordered a return remedy based on an interim
ne exeat order, and only noted in dicta that it may
not order such a remedy pursuant to a permanent
ne exeat order. See [1994] 3 S. C. R., at
589–590, 119 D. L. R. (4th), at 281.
D. S.
involved a parent’s claim based on an implicit
ne exeat right and, in any event, the court ordered a
return remedy on a different basis. See [1996] 2
S. C. R., at 140–141, 142, 134 D. L. R. (4th),
at 503–504, 505.
French courts are divided. A French Court of
Appeals held that “the right to accept or refuse the removal of the
children’s residence” outside of a region was “a joint exercise of
rights of custody.”
Public Ministry v.
M. B., [CA] Aix-en-Provence, 6e ch., Mar. 23, 1989,
Rev. crit. dr. internat. Privé 79(3), July–Sept. 1990, 529,
533–535. A trial court in a different region of France rejected
this view, relying on the mother’s “fundamental liberty” to
establish her domicil. See
Attorney for the Republic at
Périgueux v.
Mrs. S., [T. G. I.] Périgueux,
Mar. 17, 1992, Rev. cr. dr. internat. Privé 82(4) Oct.–Dec. 1993,
650, 651–653, note Bertrand Ancel, D. 1992, note G. C.
Scholars agree that there is an emerging
international consensus that
ne exeat rights are
rights of custody, even if that view was not generally formulated
when the Convention was drafted in 1980. At that time, joint
custodial arrangements were unknown in many of the contracting
states, and the status of
ne exeat rights was not yet
well understood. See 1980 Conférence de La Haye de droit
international privé, Enlèvement d’enfants, morning meeting of Wed.,
Oct. 8, 1980 (discussion by Messrs. Leal & van Boeschoten), in
3 Actes et Documents de la Quatorzième session, pp. 263–266 (1982)
(Canadian and Dutch delegates disagreeing whether the Convention
protected
ne exeat rights, while agreeing that it
should protect such rights). Since 1980, however, joint custodial
arrangements have become more common. See
supra, at 8–9.
And, within this framework, most contracting states and scholars
now recognize that
ne exeat rights are rights of
custody. See,
e.g., Hague Conference on Private
International Law: Transfrontier Contact Concerning Children:
General Principles and Guide to Good Practice §9.3, p. 43 (2008)
(“[P]reponderance of the case law supports the view” that
ne exeat rights are “rights of custody” (footnote
omitted)); Hague Conference on Private International Law: Overall
Conclusions of the Special Commission of Oct. 1989 on the Operation
of the Hague Convention of 25 Oct. 1980 on the Civil Aspects of
International Child Abduction, reprinted in 29 I. L. M.
219, 222, ¶9 (1990); Hague Conference on Private International Law:
Report of the Second Special Commission Meeting to Review the
Operation of the Hague Convention on the Civil Aspects of
International Child Abduction 11 (1993), reprinted in 33
I. L. M. 225 (1994); Silberman, The Hague Child Abduction
Convention Turns Twenty: Gender Politics and Other Issues, 33
N. Y. U. J. Int’l L. & Pol. 221, 226–232, and
n. 13 (2000); Whitman,
Croll v. Croll: The
Second Circuit Limits “Custody Rights” Under the Hague Convention
on the Civil Aspects of International Child Abduction, 9 Tulane J.
Int’l & Comp. L. 605, 611–616 (2001).
A history of the Convention, known as the
Pérez-Vera Report, has been cited both by the parties and by Courts
of Appeals that have considered this issue. See 1980 Conférence de
La Haye de droit international privé, Enlèvement d’enfants, E.
Pérez-Vera, Explanatory Report (Pérez-Vera Report or Report), in 3
Actes et Documents de la Quatorzième session, pp. 425–473 (1982).
We need not decide whether this Report should be given greater
weight than a scholarly commentary. Compare Hague International
Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.
10503–10506 (1986) (identifying the Report as the “official
history” of the Convention and “a source of background on the
meaning of the provisions of the Convention”), with Pérez-Vera
Report ¶8, at 427–428 (“[the Report] has not been approved by the
Conference, and it is possible that, despite the Rapporter’s
[sic] efforts to remain objective, certain passages
reflect a viewpoint which is in part subjective”). It suffices to
note that the Report supports the conclusion that
ne exeat rights are rights of custody. The Report
explains that rather than defining custody in precise terms or
referring to the laws of different nations pertaining to parental
rights, the Convention uses the unadorned term “rights of custody”
to recognize “
all the ways in which custody of children
can be exercised” through “a flexible interpretation of the terms
used, which allows the greatest possible number of cases to be
brought into consideration.”
Id., ¶¶67, 71, at 446,
447–448. Thus the Report rejects the notion that because
ne exeat rights do not encompass the right to make
medical or some other important decisions about a child’s life they
cannot be rights of custody. Indeed, the Report is fully consistent
with the conclusion that
ne exeat rights are just one
of the many “ways in which custody of children can be exercised.”
Id., ¶ 71, at 447.
D
Adopting the view that the
Convention provides a return remedy for violations of
ne exeat rights accords with its objects and
purposes. The Convention is based on the principle that the best
interests of the child are well served when decisions regarding
custody rights are made in the country of habitual residence. See
Convention Preamble, Treaty Doc., at 7. Ordering a return remedy
does not alter the existing allocation of custody rights, Art. 19,
id., at 11, but does allow the courts of the home country
to decide what is in the child’s best interests. It is the
Convention’s premise that courts in contracting states will make
this determination in a responsible manner.
Custody decisions are often
difficult. Judges must strive always to avoid a common tendency to
prefer their own society and culture, a tendency that ought not
interfere with objective consideration of all the factors that
should be weighed in determining the best interests of the child.
This judicial neutrality is presumed from the mandate of the
Convention, which affirms that the contracting states are “[f]irmly
convinced that the interests of children are of paramount
importance in matters relating to their custody.” Convention
Preamble, Treaty Doc., at 7. International law serves a high
purpose when it underwrites the determination by nations to rely
upon their domestic courts to enforce just laws by legitimate and
fair proceedings.
To interpret the Convention to permit an
abducting parent to avoid a return remedy, even when the other
parent holds a
ne exeat right, would run counter to
the Convention’s purpose of deterring child abductions by parents
who attempt to find a friendlier forum for deciding custodial
disputes. Ms. Abbott removed A. J. A. from Chile while
Mr. Abbott’s request to enhance his relationship with his son was
still pending before Chilean courts. After she landed in Texas, the
mother asked the state court to diminish or eliminate the father’s
custodial and visitation rights. The Convention should not be
interpreted to permit a parent to select which country will
adjudicate these questions by bringing the child to a different
country, in violation of a
ne exeat right. Denying a
return remedy for the violation of such rights would “legitimize
the very action—removal of the child—that the home country, through
its custody order [or other provision of law], sought to prevent”
and would allow “parents to undermine the very purpose of the
Convention.”
Croll, 229 F. 3d, at 147 (Sotomayor, J.,
dissenting). This Court should be most reluctant to adopt an
interpretation that gives an abducting parent an advantage by
coming here to avoid a return remedy that is granted, for instance,
in the United Kingdom, Israel, Germany, and South Africa. See
supra, at 12–13.
Requiring a return remedy in cases like this
one helps deter child abductions and respects the Convention’s
purpose to prevent harms resulting from abductions. An abduction
can have devastating consequences for a child. “Some child
psychologists believe that the trauma children suffer from these
abductions is one of the worst forms of child abuse.” H. R.
Rep. No. 103–390, p. 2 (1993). A child abducted by one parent
is separated from the second parent and the child’s support system.
Studies have shown that separation by abduction can cause
psychological problems ranging from depression and acute stress
disorder to posttraumatic stress disorder and identity-formation
issues. See N. Faulkner, Parental Child Abduction is Child Abuse
(1999), http://www.prevent-abuse-now.com/unreport.htm (as
visited May 13, 2010, and available in Clerk of Court’s case file).
A child abducted at an early age can experience loss of community
and stability, leading to loneliness, anger, and fear of
abandonment. See Huntington, Parental Kidnapping: A New Form of
Child Abuse (1982), in American Prosecutors Research Institute’s
National Center for Prosecution of Child Abuse, Parental Abduction
Project, Investigation and Prosecution of Parental Abduction (1995)
(App. A). Abductions may prevent the child from forming a
relationship with the left-behind parent, impairing the child’s
ability to mature. See Faulkner,
supra, at 5.
IV
While a parent possessing a
ne exeat right has a right of custody and may seek a
return remedy, a return order is not automatic. Return is not
required if the abducting parent can establish that a Convention
exception applies. One exception states return of the child is not
required when “there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.” Art. 13
(b),
Treaty Doc., at 10. If, for example, Ms. Abbott could demonstrate
that returning to Chile would put her own safety at grave risk, the
court could consider whether this is sufficient to show that the
child too would suffer “psychological harm” or be placed “in an
intolerable situation.” See,
e.g., Baran v.
Beaty, 526 F. 3d 1340, 1352–1353 (CA11 2008);
Walsh v.
Walsh, 221 F. 3d 204, 220–221 (CA1
2000). The Convention also allows courts to decline to order
removal if the child objects, if the child has reached a sufficient
“age and degree of maturity at which it is appropriate to take
account of its views.” Art. 13
(b), Treaty Doc., at 10. The
proper interpretation and application of these and other exceptions
are not before this Court. These matters may be addressed on
remand.
* * *
The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
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