The Last Rights: Controversial Ne Exeat Clause Grants Custodial Power Under Abbott v. Abbott - Danielle L. Brewer

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 62 No. 2

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The Last Rights: Controversial Ne Exeat Clause Grants Custodial Power Under Abbott v. Abbott

I. Introduction

The weight to be assigned to the laws and practices of foreign legal systems in the analysis of international agreements and domestic statutory disputes has long been a topic of debate in the legislative, executive, and judicial branches of the United States government.¹ On

1. Compare Atkins v. Virginia, 536 U.S. 304, 348 (2002) (Scalia, J., dissenting) (alterations in original) (quoting Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting)) (internal quotation marks omitted) ("We must never forget that it is a Constitution for the United States of America that we are expounding. . . . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."), with Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting) (citations omitted) ("Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem . . . ."). See Donald E. Childress III, Using Comparative Constitutional Law to Resolve Domestic Federal Questions, 53 Duke L.J. 193 (2003) (comparing the alternative views of utilizing foreign precedence in domestic decisions); Adam Lamparello, A New

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one side of the argument, traditional scholars contend that, as a sovereign, the United States should make decisions based solely on the best interests ofits citizens, regardless ofthe detriment imposed on the international community by such practices.² Conversely, as a modern approach, the cosmopolitan view of international systems³ depicts the United States as just one member in an international web of judicial, legislative, and executive decisions, with each country's procedures affecting the others' laws and lifestyles.⁴

This debate is becoming increasingly significant as the United States continues to augment its reliance on foreign products and investments.⁵ Consequently, the study of international law is becoming less of a legal

Method to Guide Constitutional Interpretation: Introducing "Negative Originalism," 18 U. Fla. J.L. & Pub. Pol'y 383 (2007) (discussing the alternative views of Justices of the Supreme Court of the United States). Interestingly, in Abbott v. Abbott, Justice Scalia sided with the majority, which utilized international law to determine the definition of a ne exeat clause as a "right of custody." 130 S. Ct. 1983, 1987-97 (2010). Justice Breyer sided with the dissent, deciding that the decisions of foreign courts, in this case, were not consistent with the Hague Convention. Id. at 1997-2010 (Stevens, J., dissenting).

2. See Atkins, 536 U.S. at 324-25 (Rehnquist, J., dissenting) ("I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination."); see also id. at 347-48 (Scalia, J., dissenting) (footnote omitted) (citations omitted) ("[T]he Prize for the Court's Most Feeble Effort to fabricate 'national consensus' must go to its appeal... to the views of. . . members of the

so-called 'world community'____I agree with THE CHIEF JUSTICE [Rehnquist], that the

views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people.").

3. See Immanuel Kant, Idea for a Universal History with a Cosmopolitan Intent, in Perpetual Peace and Other Essays on Politics, History, and Morals 29 (Ted Humphrey trans., Hackett Publ'g Co. 1983) (1784).

4. See, e.g., Lawrence v. Texas, 539 U.S. 558, 573 (2003) (utilizing foreign precedent to decide the constitutionality of a state law); Atkins, 536 U.S. at 307, 316 n.21 (utilizing foreign precedent to decide an Eighth Amendment issue); Roe v. Wade, 410 U.S. 113, 13033 (1973) (discussing historical and foreign law in the context of abortion laws); New York v. United States, 326 U.S. 572, 580 n.4, 583 n.5 (1946) (discussing foreign law in the context of tax law); Muller v. Oregon, 208 U.S. 412, 419 (1908) (examining foreign statutes in the context of setting employment hours); David Fontana, Refined Comparativism in Constitutional Law, 49 UCLAL. Rev. 539, 544-49 (2001) (describing the history of utilizing foreign precedence in domestic decisions).

5. See, e.g., Press Release, Office of the United States Trade Representative, United States Trade Representative Ron Kirk Signs Agreement on Trade and Economic Cooperation to Promote American Exports to Brazil (Mar. 19, 2011), available at http://www.ustr.gov.

2011] ABBOTT V. ABBOTT 665

phantom and more a living reality for the United States.⁶ As recent internationally-based cases demonstrate, courts more frequently must make controversial decisions whether to use the customary legal practices of foreign nations as informative authority.⁷ In 2010 the Supreme Court of the United States held in Abbott v. Abbott⁸ that a parent's ne exeat right granted in a foreign court will be considered by the United States to constitute a "right of custody," as defined in the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention),⁹ rather than a "right of access."¹⁰ In making this decision about parental child abduction and the contested ne exeat right, the Supreme Court, through the analysis of foreign custom and legal precedence, impressed upon domestic courts the importance of foreign laws when interpreting international treaties.¹¹

The Supreme Court's decision in Abbott should be examined using two distinct lenses. Viewing this decision domestically, by determining the United States's stance on international custody rights, the Supreme Court resolved a federal circuit split and dictated the standard for domestic courts to follow in cases involving the Hague Convention.¹² More importantly, on an international level, this decision signals to the international community that the United States judicial system is willing to utilize foreign laws and policies to interpret treaties to which the United States is a party.¹³ This is a lengthy stride in giving the field of international law more validity in the realm of multi-national and domestic litigation.¹⁴

6. See Judge John Kane, International Law From the Trial Judge's Vantage Point, 35 Denv. J. Int'l L. & Pol'y 379, 379 (2007) (discussing how international law is rapidly affecting a court's daily tasks).

7. See, e.g., Dalrymple v. United States, 460 F.3d 1318, 1331-32 (11th Cir. 2006) (discussing the litigation arising out of the custody dispute for Elian Gonzalez); Kane, supra note 6, at 380 ("The fact is that international law and foreign law are being raised in our federal courts more often and in more areas than our courts have the knowledge and experience to handle.").

8. 130 S. Ct. 1983 (2010).

9. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25,

1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Convention].

10. Abbott, 130 S. Ct. at 1990.

11. See id. at 1993.

12. See id. at 1989.

13. See id. at 1993.

14. See Childress, supra note 1, at 200-01 (discussing the use of foreign law in domestic cases); Fontana, supra note 4, at 544-49 (describing the history of utilizing foreign precedence in domestic decisions).

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II. Factual Background

In 2003 Timothy Abbott, a British citizen, and Jacquelyn Abbott, a United States citizen, separated and relied on the Chilean Family Court to determine who would retain custody of A.J. Abbott, their young son. The court awarded Ms. Abbott daily care and control of A.J., and Mr. Abbott received regular visitation rights. The court additionally granted a ne exeat order.¹⁵ A ne exeat order is a custody device used by international courts that requires either both parents' consent or permission from the court before a custodial parent may change a child's country of residence.¹⁶

In August 2005 Ms. Abbott removed A.J. from Chile without the consent of Mr. Abbott or the Chilean court. After a private investigation, Ms. Abbott and A.J. were found living in Texas where Ms. Abbott had filed for a divorce and a modification of paternal visitation rights in the State Court of Texas. Mr. Abbott subsequently requested that the state court grant him visitation rights and order A.J.'s return to Chile. The state court denied A.J.'s return but granted visitation rights on the condition that Mr. Abbott remain in Texas. Not satisfied, Mr. Abbott requested the United States District Court for the Western District of Texas to grant an order, pursuant to the Hague Convention, requiring A.J.'s return.¹⁷ The district court denied relief and "held that the father's ne exeat right did not constitute a right of custody under the [Hague] Convention and, as a result, that the return remedy was not authorized."¹⁸ On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision, following the precedent ofthe United States Courts ofAppeals for the Second, Fourth, and Ninth Circuits.¹⁹ In contrast to the opinion of the United States Court of Appeals for the Eleventh Circuit²⁰ and the Second Circuit dissent of former Circuit Court Judge Sotomayor in Croll v. Croll,²¹ the Fifth Circuit determined that a parent's ne exeat right is merely a "veto

15. Abbott, 120 S. Ct. at 1988. In Chile, it is customary to grant a ne exeat order to any parent with visitation rights. Id.

16. Black's Law Dictionary 1131 (9th ed. 2009). A ne exeat clause is defined as "[a]n...