Supreme Court Rules Abducted Child Should Have Stayed In Chile

I found a fascinating article today written by Lori Paul in, California Family Law Paralegal which describes a case at the intersection between family law and international law.  The article describes the matter of Abbott v. Abbott, a case involving a mother and father who divorced in Chile.  The parties had one son. The Chilean court granted the mother custody, with visitation rights to the father.  In addition, the Chilean court ordered that neither parent could leave Chile with the child without the other parent’s agreement (“no removal” order or ne exeat order).

Unable to find work in Chile, the mother left the country with the parties’ son and returned to the United States. The father found the mother and child in Texas and moved to enforce the Chilean “no removal” order.

In deciding the case, the U.S. Supreme Court had to grapple with whether the “no removal” order issued by the Chilean court constituted a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction.  While it might seem quite obvious that the answer would be yes, most lower courts facing the same or similar issue had decided in the negative.

In a 6-3 decision with an opinion written by Justice Kennedy, the U.S. Supreme Court decided, however, that the “no removal” order was a custodial right granted to the father and that the mother wrongfully removed the parties’ son when she left Chile without the father’s agreement.  Justice Stevens, Thomas and Breyer dissented.

Here is a link to California Family Law Paralegal where you can access the full text of the opinion as well as oral argument.  You can also access the briefs filed on both sides of the argument by following this link.