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.
Gestational surrogates in two states, New Jersey and Michigan, have successfully won custody of the children to whom they gave birth. Unlike standard surrogacy arrangements, gestational surrogacy is an arrangement where the birth mother agrees to carry the pregnancy to delivery after having been implanted with an embryo to which she typically has no genetic relationship. For an excellent discussion of surrogacy laws and arrangements, both in the U.S. and internationally, you can link to a Wikipedia article here.
In the New Jersey case, Angelia G. Robinson agreed in 2006 to carry a fertilized embryo for her brother and his same-sex partner, which they had fertilized with the partner’s sperm. Subsequently, raising allegations that she was coerced into the arrangement, Angelia sought custody of the child. Superior Court Judge Francis Schultz sided with Angelia, relying primarily on an earlier New Jersey Supreme Court case, In re Baby M. (1988) 109 N.J. 396, 536 A.2d 1227. A PDF copy of the Baby M. case is in the Box for those interested.
In a similar development, Michigan couple Amy Kehoe and her husband Scott arranged for the use of a gestational surrogate, Laschell Baker, after acquiring an egg and sperm from third parties. Baker successfully sought custody of the twins borne of the pregnancy, claiming that she took action upon learning that one of the parents had been treated for mental illness.
An excellent discussion and comments on these cases can be found at Jonathan Turley‘s blog here. Another excellent article can be found at The Huffington Post, written by Jacob M. Appel, here.
What are your thoughts on these kinds of cases? Should Angelia have won any custody rights when she was not biologically related to the child? Are these cases examples of CIVIL RIGHTS or CIVIL WRONGS?