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Court Tackles Parental Child Abduction Case

By FindLaw Staff on May 17, 2010 | Last updated on March 21, 2019

Abbott v. Abbott, No. 08-645, concerned a petition seeking an order requiring petitioner's son's return to Chile under the Convention and the implementing statute, the International Child Abduction Remedies Act (ICARA).  The Court reversed the Fifth Circuit's affirmance of the district court's denial of the petition, holding that petitioner had a right of custody under the Convention by reason of that parent's ne exeat right under Chilean law, because: 1) Chilean law determined the content of petitioner's right, while the Convention's text and structure resolved whether that right was a right of custody; 2) that the child was wrongfully removed from Chile in violation of a right of custody was shown by the Convention's text, by the U.S. State Department's views, by contracting states' court decisions, and by the Convention's purposes; and 3) while a parent possessing a ne exeat right has a right of custody and can seek a return remedy, return will not automatically be ordered if the abducting parent can establish the applicability of a Convention exception.

As the Court wrote:  "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."

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