The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Abbott v. Abbott [Cornell LII backgrounder; JURIST report] that a ne exeat clause, which prohibits one parent from removing a child from the country without the other parent's consent, confers a "right of custody" within the meaning of the Hague Convention on International Child Abduction [text]. The Hague Convention requires a country to return a child who has been "wrongfully removed" from his country of habitual residence. Under Art. 12, a "wrongful removal" is one that occurs "in breach of rights of custody." The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that ne exeat rights do not constitute "rights of custody" within the meaning of the Hague Convention. Reversing the decision below, Justice Anthony Kennedy wrote:
Because Mr. Abbott has direct and regular visitation rights, it follows that he has a ne exeat right under article 49. The Convention recognizes that custody rights can be decreed jointly or alone and Mr. Abbott's ne exeat right is best classified as a "joint right of custody," which the Convention defines 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." Mr. Abbott's right to decide [his child's] country of residence allows him to determine the child's place of residence, especially given the Convention's purpose to prevent wrongful removal across international borders. It also gives him "rights relating to the care of the person of the child," in that choosing [his child's] residence country can determine the shape of his early and adolescent years and his language, identity, and culture and traditions. That a ne exeat right does not fit within traditional physical custody notions is beside the point because the Convention's definition of "rights of custody" controls.Justice John Paul Stevens wrote in dissent and was joined by Justices Clarence Thomas and Stephen Breyer. The case was remanded to the lower court.
The case was brought by petitioner Timothy Abbott after his ex-wife, respondent Jacquelyn Abbott, removed their son to the US from Chile without his permission in 2005. He argued that his ne exeat right gave him joint authority over the child's place of residence and that removing the child from Chile violated this right.