SCOTUS Rules on International Custody Case: Child Removed in Violation of Non-Relocation Order Must be Returned

The U.S. Supreme Court issued a ruling on Monday in an international custody case governed by the Hague Convention on the Civil Aspects of  International Child Abduction. In Abbott v. Abbott, 560 U.S. ___ (May 17, 2010), the mother and father of a child who was born in the United States moved to Chile. When the parents separated, a Chilean court awarded primary custody to the mother and visitation to the father. Under Chilean law, a visitation order includes the right to prohibit the mother from taking the child out of Chile without the permission of the court or the father. The mother took the child to Texas without permission, prompting the father to sue in federal court under the Hague Convention. The Texas court held that it did not have jurisdiction under the Hague Convention because the father had no “rights of custody” under the Chilean court orders. The Fifth Circuit affirmed.

On appeal, the U.S. Supreme Court reversed, holding that the father’s right to prevent the mother from taking the child out of Chile amounted to “rights of custody” under the Hague Convention. In other words, the father’s right to deny relocation, which was implicit in the Chilean court’s visitiation order, was sufficient to invoke the protections of the Hague Convention.

The Hague Convention contains a definition of “rights of custody” which includes the right to determine a child’s place of residence. An order or law that prohibits a parent from removing the child from the court’s jurisdiction imposes a duty on a parent that is a right in the other parent. This right to veto the departure of a child is a “right of custody” under the Hague Convention. This Supreme Court decision overturned decisions made in the Fifth Circuit, Second Circuit, Fourth Circuit and Ninth Circuit.