International law - rights of access with ne exeat clause do not create rights of custody under Hague Convention - Abbott v. Abbott.
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) was created and adopted because of the worldwide concern regarding international child abductions, including parental kidnapping, and the need for a unified international response. (1) The Hague Convention distinguishes between a parent's "rights of custody" from "rights of access" to determine whether the left-behind parent possesses the appropriate level of rights to trigger the remedy under the Hague Convention of returning the child to his or her habitual place of residence. (2) In Abbott v. Abbott, (3), the Fifth Circuit considered whether one parent's rights of access, also known as visitation rights, coupled with a ne exeat clause created rights of custody. (4) The court held that because the wording and intent of the Hague Convention did not confer the same remedy for any lesser rights, specifically the rights of access, the remedy of return of the child was only valid if rights of custody were violated. (5)
Timothy Abbott and Jacqueline Abbott resided in La Serena, Chile with their minor son until their separation in 2003. (6) The parties litigated in the Chilean family court, which issued four orders including one order awarding the mother custody and the father visitation rights and a second order "prohibiting the child's removal from Chile by either the father or mother without their mutual consent (the 'ne exeat order')." (7) In August 2005, amid the Abbots visitation disputes, the mother removed the child from Chile. (8) Through a private investigator, the father located his child in Texas and filed suit in the District Court for the Western District of Texas pursuant to the Hague Convention, requesting the court to order the mother to return the child to Chile. (9)
The District Court focused on the differences between rights of access and rights of custody within the meaning of the Hague Convention and determined the return of the child hinged on whether the father possessed rights of custody. (10) The court also stated that while the removal of the child frustrated the Chilean court's order, the father's rights of access, however enhanced and protected by the ne exeat order, were not sufficient to create the requisite rights of custody that warrant the greater protection intended under the Hague Convention. (11) Denying the request to mandate the child be returned to Chile, the court reasoned the ne exeat order only gave the father a "veto power" with regard to the child's place of residence outside the home state. (12)
The Hague Convention was enacted in 1980, in an attempt "to reconcile the competing policies of national jurisdictional discretion and the deterrence of parental abduction." (13) The Hague Convention makes clear that it is only concerned with international situations involving the return of a child to the home state and not with any unilateral criminal offenses. (14) The Hague Convention is not a self executing treaty; therefore, a contracting state must enact a domestic law which adopts the treaty in that jurisdiction. (15) In 1988, Congress enacted the International Child Abduction Remedies Act and explicitly stated the provisions of the statute were intended to implement the Hague Convention in the courts of the United States. (16) A petitioner bears the burden of proving "wrongful removal" by a preponderance of the evidence and a court is not permitted to consider the merits of the underlying custody disputes. (17)
The Hague Convention requires that each Contracting State adopt a central authority to process applications of child abductions. (18) Once a child abduction petition is submitted, there are several requirements which must be met in order for the Hague Convention to be invoked, including, both the home State and foreign State must be signatories to the Hague Convention, the child must be under sixteen years of age, and the child must have been wrongfully removed from their habitual residence. (19) Within the Hague Convention are six exceptions by which, even where a child is proven to have been wrongfully removed, the abducting parent can prevent the return of the child. (20) Many courts have construed these exceptions narrowly in order to preserve the intention of the Hague Convention which is to "restore the factual situation that existed prior to the child's removal or retention." (21)
In the past decade, four circuit courts have considered the issue of whether rights of access coupled with a ne exeat provision create rights of custody under the meaning of the Hague Convention by analyzing the language of the treaty and the intent of its drafters. (22)
In Croll v. Croll, the Second Circuit dismissed the respondent's argument that a ne exeat clause enhanced non-custodial parent's rights to determine a child's place of residence, thereby creating rights of custody. (23) The court reasoned custodial rights, when given to one parent, are indicative of the parent exercising care and control for the minor child, not just determining where the child resides. (24) Furthermore, the court stated that a ne exeat clause does not give the non-custodial parent the same power to determine the place of residence, only the power to veto a location if it is outside the home state. (25) In 2004, the Eleventh Circuit created a Circuit split by holding that a non-custodial parent's ne exeat clause does establish rights of custody. (26) The Eleventh Circuit reasoned that "the violation of a single custody right suffices to make removal of a child wrongful," and since the Hague Convention does not define place of residence, having the right to determine whether the child lives inside or outside the State constitutes the right to determine place of residence. (27)
In Abbott v. Abbott, the Fifth Circuit relied heavily on the district court's ruling and on the opinions of the majority of the circuit courts in holding that the father possessed only rights of access which did not require the remedy of returning the child. (28) The court first analyzed whether the Chilean statute, under which the ne exeat order was granted, included any greater rights for the father, but the court determined that the Chilean order was identical to the statutory ne exeat provision and should be treated the same. (29) In reviewing the circuit split, the Fifth Circuit noted the Croll Court's emphasis on the ordinary meaning of the phase "rights of custody" and the Croll Court's distinction between the many rights enumerated in the Hague Convention. (30) In its reasoning, the court emphasized that the ne exeat order only allowed the father a veto power over his son's removal from Chile, but where the child lived within Chile, the child's place of residence was solely the mother's discretion. (31) Concluding that the father only possessed rights of access, the court emphasized the district court's distinction between this case and the Furnes case in which the father had rights of "joint parental responsibility," thereby creating greater rights affecting his son's care. (32) The court denied removal and return of the child to Chile and added to the finding that a ne exeat order, coupled with rights of access, does not amount to rights of custody. (33)
The Fifth Circuit's decision in Abbott v. Abbott misinterpreted the meaning and purpose of the Convention, and the court's role in the domestic and international realms. (34) The court found the removal of the child was not "wrongful" because it was not in breach of the custodial rights of the petitioning parent. (35) Just as the prior circuit courts relied on the plain meaning of rights of custody versus rights of access, the Abbott Court failed to interpret the drafters' intentions with regards to protecting all aspects of child care. (36) The court emphasized that custody rights are the only rights that determine a child's place of residence outside the home state, but failed to recognize that the international character of the Hague Convention lends itself to the interpretation that all parental rights fall within the meaning of the Hague Convention in any situation in which the child's place of residence is in question--domestic or international. (37) The court also ignored the sole purpose of a ne exeat clause; to prevent one parent from removing a child without the consent of either the other parent or the courts. (38) An abducting parent that removes a child when a ne exeat order was entered clearly violates that provision and should not be able to take refuge in another country, particularly one that is a signatory to the Hague Convention. (39) U.S. courts have dismissed this and similar cases claiming a lack of jurisdiction to mandate return of the child back to the home state, but have not taken into account that jurisdiction is appropriate when authority is exercised "where the child is located at the time the petition is filed." (40)
The Fifth Circuit, along with other circuit courts, has ignored the position taken by other signatory countries to the Hague Convention that have addressed whether a ne exact order creates a right of custody. (41) Nine out of eleven other countries have determined that the ne exeat order creates a right of custody by relying on the text of the Hague Convention and the practical application of the ne exeat provision. (42) The majority recognized that a ne exeat order gave one parent the limited right to determine the place of residence. (43)
In determining that the father could not require that the child be sent back to the home state, the Fifth Circuit did not consider the best interests of the minor child or that the Hague Convention stresses that custody decisions should be decided in the state of habitual residence. (44) When U.S. courts determine custody and visitation rights they take into account the best interests of the child when considering whether to allow one parent to relocate. (45) By refusing to mandate the return of the child to the home state, the Fifth Circuit delayed resolution by the home state of the custody issue, as well as the determination of whether moving to the United States was in the child's best interest. (46) Moreover, the court, by claiming that it had no jurisdiction for authorizing the remedy of return of the child, left the father with only the option of petitioning the Texas state court to allow him visitation, further keeping the custody decisions out of the hands of the state of habitual residence. (47)
In Abbott v. Abbott, the Fifth Circuit considered whether a ne exeat order coupled with rights of access amount to rights of custody within the meaning of the Hague Convention. The court held that a left-behind parent who only had rights of access did not have the requisite level of rights to trigger the remedy of returning the minor child to the home state. Despite the court's reasoning that the Hague Convention enumerated multiple rights, only the rights of custody provide the remedy of returning the child to his or her habitual place of residence. The court emphasized that while a ne exeat order prevented one parent from removing the child without the consent of the other parent, this limitation only created a veto power in determining the child's place of residence. Similar to the majority of circuit courts, the Fifth Circuit construed the text of the Hague Convention too narrowly without adequately considering the intent of the drafters, decisions from other signatory states, and the best interests of the child.
(1.) See Daniel M. Fraidstern, Note, Croll v. Croll and the Unfortunate Irony of the Hague Convention on the Civil Aspects of International Child Abduction: Parents with "Rights of Access " Get No Rights to Access Courts, 30 Brook. J. Int'l L. 641, 641-42 (2005) (describing increase in child abductions and main legal problems left-behind parents face). The purpose of the Hague Convention is "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." Hague Convention on the Civil Aspects of International Child Abduction art. 1, Oct. 25, 1980, T.I.A.S. No. 11,670 [hereinafter Hague Convention]. An aim of the Hague Convention is the protection of the collective interest of children by requiring the return of "wrongfully removed and retained children to their home environment" where substantive issues of the case may be addressed. Paul R. BEAUMONT & PETER E. MCELEAVY, THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION 29-30 (1999). A second and complementary aim of the Hague Convention is to ensure that parents do not manipulate jurisdictional differences to alter or avoid custodial agreements or orders that originated in the state in which the children lived prior to the dissolution of their marriage. Eliza Perez-Vera, Explanatory Report, 3 Hague Conference on Private International Law, in Acts and Documents of the 14th Session 429 (1982) [hereinafter Perez-Vera, Explanatory Report]. Detailed knowledge of the effects of parental kidnapping on minor children is not known, but there is agreement that even under the best circumstances a child will suffer from being uprooted from their home environment and the loss of contact with the left-behind parent. BEAUMONT & MCELEAVY, supra, at 13-14.
(2.) Hague Convention, supra note 1, art. 5 (setting forth "rights of custody" and "rights of access"). Pursuant to the "right of custody" set forth in Article 5, such rights 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." Id. In addition, Article 5 provides that the "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".
Id. The removal of a child is considered wrongful where "it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised ... but for the removal or retention." Id. at art. 3. The distinction between rights of access and rights of custody are important because if the Appellant has custody rights, U.S. courts have jurisdiction to order the return of the child to the home state. See Fraidstern, supra note 1, at 659. If Appellant merely has access rights, however, U. S. courts are without jurisdiction to order the child be returned. Id.; see also Perez-Vera, Explanatory Report, supra note 1, para. 65 (noting majority determined remedy only applies to custody rights, not access rights). An element of the Hague Convention requires that the left-behind parent seeks to have the child returned to his or her habitual residence. Susan L. Barone, Note, International Parental Child Abduction: A Global Dilemma With Limited Relief--Can Something More Be Done?, 8 N.Y. INT'L L. REV. 95, 105-06 (1995). The term "habitual residence" is not expressly defined in the Hague Convention and the meaning of the term is highly contested. Id. at 106. The Court of Appeals for the Sixth Circuit "concluded that the habitual residence is the residence prior to the questionable removal of the child...." Id. at 107.
(3.) 542 F.3d 1081 (5th Cir. 2008).
(4.) Id. at 1082-83 (setting forth father's argument ne exeat order and statutory ne exeat provision provided "rights of custody"). A ne exeat clause is defined as a "writ which forbids the person to whom it is addressed to leave the country, the state, or jurisdiction of the court." BLACK'S LAW DICTIONARY 1031 (7th ed. 1999).
(5.) Abbott, 542 F.3d at 1087-88 (holding mother violated father's "right of access," but not "right of custody"). The court dismissed the case reasoning that it lacked jurisdiction because the rights of custody were not violated, as required by the Hague Convention. Id.
(6.) See id. at 1082 (explaining petitioner-appellant, Timothy Abbott's British citizenship and Respondent-Appellee, Jacqueline Abbott's U.S. citizenship).
(7.) Id. The first order, issued in January 2004, provided visitation rights to the father. Id. The second order, issued in November 2004, required the parties and their son to undergo private therapy and granted all custodial rights to the mother. Id. The third order, issued in February 2005, expanded the father's visitation rights, including visitation for an entire month during summer vacation. Id. On January 13, 2004, at the mother's request, the Chilean court entered the "ne exeat order." Id.
(8.) Id. (stating mother left with minor son in August 2005). Prior to the mother leaving Chile, the father sought and was denied an order from the Chilean courts to expand his rights with respect to his son. Petition for a Writ of Certiorari at 4, Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008)(No. 08-645).
(9.) Abbott, 542 F.3d at 1082.
(10.) Abbott v. Abbott, 495 F.Supp. 2d 635, 638 (W.D. Texas 2007).
(11.) Id. at 640-41 (explaining returning child to country where parent has rights of access frustrates purpose of Hague Convention).
(12.) Id. at 640 (explaining ne exeat order did not give father custody rights or change mother's daily control over child).
(13.) See Mark Dorosin, Note, You Must Go Home Again: Friedrich v. Friedrich, the Hague Convention and the International Child Abduction Remedies Act, 18 N.C. J. Int'l L. Com. Reg. 743, 743 (1993); BEAUMONT & MCELEAVY, supra note 1, at 16-37 (detailing inception to drafting of Hague Convention). Today, there are 69 Member States to the Hague Convention. Hague Conference on Private International Law, HCCH Members, http://www.hcch.net/index_en.php?act=states.listing (last visited February 8, 2010) (listing Member States to the Hague Convention).
(14.) Perez-Vera, Explanatory Report, supra note 1, at 441-42, paras 53-56.
(15.) See Barone, supra note 2, at 100.
(16.) The International Child Abduction Remedies Act, 42 U.S.C. [section] 11601 (1988). There are two domestic laws in the United States that prohibit interstate parental child abduction. See Barone, supra note 2, at 98. The first, the Uniform Child Custody Jurisdiction Act (UCCJA) states that "a court determines jurisdiction based on a 'home' state or 'best interest' [of the child] analysis." 9 U.L.A. 115 (1968); see Barone, supra note 2, at 98. Under the UCCJA, a state must give full faith and credit to a prior custody decree that is in accordance with the UCCJA. 9 U.L.A. 115 (1968); see Barone, supra note 2, at 98. The second, the Parental Kidnapping Prevention Act (PKPA) prevails over the UCCJA if the two acts conflict, but does not provide a remedy for international child custody situations. 28 U.S.C. [section] 1738 (1980); see Barone, supra note 2, at 98. Congress enacted the International Parental Kidnapping Act (IPKA) in 1993, with the intention that it be used as a remedy when the Hague Convention cannot be implemented. 28 U.S.C. [section] 1738A (1993); see Barone, supra note 2, at 99;.
(17.) 42 U.S.C. [section] 11603(b)(4), (e)(1). In the United States, a petitioner claiming wrongful removal under the Convention may bring a petition for an order of return in a U.S. district court or in a court of any state. 42 U.S.C. [section] 11603(a), (b). The court has the authority only to determine whether the child's removal was "wrongful," i.e., whether the removal "was in breach of custody rights" held by petitioner. 42 U.S.C. [section] 11603(e)(1)(A). If the petitioner shows that the child was wrongfully removed, the court must order the child's return to the country of habitual residence unless the respondent demonstrates one of the exceptions. 42 U.S.C. [section] 11601(a)(4).
(18.) See Fraidstern, supra note 1, at 651. The central authority then aides the petitioner's attorney and sends an informational letter to the judge who will preside over the hearing regarding the Hague Convention. Id. The Permanent Bureau of the Hague Convention on Private International Law (Permanent Bureau) ensures the effective implementation of the Hague Convention. See Motion for Leave to File Amicus Brief and Brief of the Permanent Bureau of the Hague Conference on Private International Law as Amici Curiae Supporting Petitioner, Abbott v. Abbot, 542 F.3d 1081 (5th Cir. 2008)(No. 08-645)[hereinafter Amicus Brief]. On the request of a Member State, the Permanent Bureau will correct an interpretation of the Convention to ensure any unlawfully removed child is safely returned. Id.
(19.) See Barone, supra note 2, at 104-08. The Hague Convention defines wrongful removal as a violation of a person's custody rights, therefore it is necessary to determine the right of custody and the habitual residence of a child. 42. U.S.C. [section] 11603(e) (2)(B) (2006); Barone, supra note 2, at 104-08; supra note 2 and accompanying text.
(20.) See Barone, supra note 2, at 108-13 (explaining six exceptions). The first exception in Article Twelve provides that if the abducting parent can prove the child was removed over a year ago and is now settled in a new environment, the judicial authority can use discretion on whether to return the child. Hague Convention, supra note 1, art. 12. The second, in Article Twenty, establishes that if the abducting parent can prove that returning the child would be against "the protection of human rights and fundamental freedoms" then the return of the child may be refused. Id. at art. 20. The remaining exceptions, in Article Thirteen, maintain that a state is not bound to return the child if the person seeking the child's return is not exercising custody rights, and if there is "grave risk" of causing physical or psychological harm to the child. Id. at art. 13. Finally, if the person caring for the child consented or acquiesced to the removal, or if the child objects to being returned and has reached an age of maturity, a state is not bound to return the child. Id. A left-behind parent is not without further remedy if they cannot prove wrongful removal of a child, or if the abducting parent proves one of the six exceptions. Fraidstern, supra note 1 at 662. The left-behind parent may file a claim in state court petitioning for visitation rights. Id. This petition will be considered based on that state's visitation statute. Id.
(21.) Fraidstern, supra note 1, at 652. The Hague Convention is not intended to resolve custody disputes, and unless circumstances exist under an exception, courts do not see the harm in returning the child to the abducted-from country to resolve disputes. Id. at 652-53.
(22.) See Croll v. Croll, 229 F.3d 133, 138-43 (2nd Cir. 2000) (holding ne exeat clause in divorce proceeding did not provide right of custody under Hague Convention); Gonzalez v. Gutierrez, 311 F.3d 942, 948-49 (9th Cir. 2002) (stating child's removal under Hague Convention wrongful when breaches parent's custody rights); Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003) (holding mother's rights under Scotland's Children Act, analogous to ne exeat clauses, confer no custody right); Furnes v. Reeves, 362 F.3d 702, 714 (11th Cir. 2004) (determining Norwegian Children's Act ne exeat provision establishes rights of custody).
(23.) Croll, 229 F.3d at 143.
(24.) Id. at 139-41. Analyzing the words used in Article 5 of the Convention, the court determined that "rights of custody" are rights relating to the care of the child and this right cannot be discharged. Id. at 139. A ne exeat clause does not give the non-custodial parent the right to determine where the child lives, only the power to veto a move to another country. Id. The court notes that the power to determine the child's place of residence is one of the choices entailed by caring for the child. Id. at 140. Therefore, if the custodial parent chose to stay in the home state, the non-custodial parent could not use the ne exeat clause to determine the child's place of residence. Id. at 139. See also Gonzalez, 311 F.3d at 949 (citing Croll, right granted under ne exeat clause only veto power and does not equal custody right). In Gonzalez, the court held that the father could, at most, refuse permission for children to leave Mexico, but could not specify where children live within Mexico. Id.; see Fawcett, 326 F.3d at 500 (explaining ne exeat clause only allows parent with access rights to impose limitation, amounting to custody rights). But see Croll, 229 F.3d at 145-48 (Sotomayor, J., dissenting) (emphasizing majority misconstrued case). In Croll, the dissenting opinion analyzed whether the ne exeat clause itself created rights of custody under the meaning of the Hague Convention. Croll, 229 F.3d at 145. The dissent determined that a ne exeat clause is a protective right under the Hague Convention and reasoned that while the drafters did not define every term, the intention was to "protect all the ways in which custody can be exercised." Id. at 146 (quoting Perez Vera, Explanatory Report, supra note 1, at para. 71).
(25.) Croll, 229 F.3d at 146.
(26.) Furnes, 362 F.3d at 712-16.
(27.) Id. at 714-15. The court viewed the ne exeat power not as a mere veto right, but as a limitation on the mother's right to determine where the child resides. Id. Therefore, any violation of a ne exeat clause related to the care of the child and fell under the Hague Convention's rights of custody. Id. at 716.
(28.) Abbott, 542 F.3d at 1084-88 (acknowledging child removal frustrated father's rights, but ne exeat clause and access rights not equal to custody rights).
(29.) Id. at 1084. The Chilean statute states "[i]f the judge has entrusted custody to one parent ... once the court has decreed the obligation to allow visits ... authorization of the father or mother who has the right to visit a child shall also be required...." Id.
(30.) Id. at 1084-85. The Fifth Circuit agreed with the Croll Court that since the Hague Convention distinguished between different levels of rights, no right less than the "rights of custody" would enable a left-behind parent to invoke the return of a minor child. Id. at 1085.
(31.) Id. at 1087. The court also noted that the Chilean court denied the father's second request for more expansive rights with regard to his son. Id.; see also Petition for a Writ of Certiorari at 4, Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008) (No. 08-645).
(32.) Abbott, 542 F.3d at 1086 (stating Chilean statute did not protect father in making rights to affect son's care).
(33.) Id. at 1087.
(34.) See cases cited supra note 24 (discussing majority of circuits' interpretation and dissenting opinions analysis of issues facing these types of cases).
(35.) See supra notes 28-33 (reviewing Fifth Circuit Court's holding and analysis).
(36.) See supra notes 28-33.
(37.) See Perez-Vera, Explanatory Report, supra note 8, para. 56 (discussing similarity of child abduction cases). The Explanatory Report emphasizes that while not all specific situations are enumerated, the "international nature of the Convention arises out of a factual situation, that is to the say the dispersal of members of a family among different countries." Id. Compare supra note 24 (distinguishing rights of custody from rights of access) and supra note 29 (explaining that having one of the bundle of rights does not establish right of custody) with Motion for Leave to File Amicus Brief and Brief of the Permanent Bureau of the Hague Conference on Private International Law as Amici Curiae Supporting Petitioner at 9, Abbott v. Abbot, 542 F.3d 1081 (5th Cir. 2008) (No. 08-645) (stating rights of custody under Hague Convention include "definition, structure, and purposes of the Convention").
(38.) See supra note 4 and accompanying text (setting forth definition of ne exeat clause).
(39.) See Hague Convention, supra note 1 (explaining one purpose of Convention to ensure laws of one state are respected); see also Motion for Leave to File Amicus Brief and Brief of the Permanent Bureau of the Hague Conference on Private International Law as Amici Curiae Supporting Petitioner at 5, Abbott v. Abbot, 542 F.3d 1081 (5th Cir. 2008) (No. 08-645) (explaining inconsistent fulfillment in Hague Convention objectives). The Amicus Brief elaborated that the inconsistencies can lead to one parent bringing a child to a particular jurisdiction knowing the Hague Convention will not be applied there. Id.
(40.) 42 U.S.C. [section] 11603(b)(2006); see also Petition for a Writ of Certiorari at 16, Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008)(No. 08-645).
(41.) See Hague Convention, supra note 1, art. 1 (stating one major purpose of Convention is to respect custody rights between sister States); see also Abbott, 542 F.3d at 1086 (referring to other signatory countries decisions as inconsistent and therefore not taken into consideration).
(42.) See Petition for a Writ of Certiorari at 18, Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008)(No. 08-645).
(43.) Id. at 18-21 (explaining decisions taken by courts in other signatory states).
(44.) See Perez-Vera, Explanatory Report, supra note 1, paras. 11, 23.
(45.) Fraidstern, supra note 1, at 664-65 (comparing Croll decision with U.S. divorce decrees).
(46.) See id.
(47.) See supra note 20 and accompanying text (explaining remaining remedy for left-behind parent).
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|Publication:||Suffolk Transnational Law Review|
|Date:||May 18, 2010|
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