International law - rights of access with ne exeat clause do not create rights of custody under Hague Convention - Abbott v. Abbott.

• Author: Gupte, Arpita

International Law--Rights of access with ne exeat clause do not create rights of custody under Hague Convention--Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008).

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...