Abbott v. Abbott

2010-05-17

Headline: A parent's ne exeat (veto) right to stop a child leaving the country is a custody right under the Hague Convention, so the Court allowed a father to seek his son's return to Chile, increasing return remedies.

Holding: A parent’s ne exeat veto right under Chilean law qualifies as a 'right of custody' under the Hague Convention, allowing the father to seek the child’s return to Chile.

Real World Impact:

Allows parents with ne exeat veto rights to seek child returns under the Hague Convention.
Increases return petitions in U.S. courts for cross-border removals tied to visitation rules.
Exceptions like grave risk or a mature child’s objection can still block a return.

Topics: international child abduction, custody vs visitation, Hague Convention, international family law

Summary

Background

After the parents moved to Chile and separated, Chilean family courts gave the mother daily care and control of their son and the father regular visitation. Chilean law (Minors Law 16,618) meant a parent with visitation normally must consent before the child may be taken out of the country (a ne exeat right). The mother brought the boy to Texas without the father’s or the Chilean court’s permission. The father sued in U.S. court under the Hague Convention and the implementing U.S. law to require the child’s return. Lower federal courts denied relief, holding the ne exeat veto was not a custody right.

Reasoning

The Court asked whether the father’s ne exeat veto is a “right of custody” under the Convention. Looking first to Chilean law for what rights were created, then to the Convention’s text and purpose, to the U.S. State Department’s longstanding view, and to decisions in other countries, the majority concluded the ne exeat right is a joint custody right. The Court said the Convention defines custody to include the right to determine a child’s place of residence and rights affecting the child’s person and upbringing, and a ne exeat right fits that definition. The Court reversed and sent the case back for further proceedings.

Real world impact

Parents who hold ne exeat or similar veto rights in other countries can now press U.S. courts for a return remedy under the Hague Convention, potentially increasing return petitions. Returns are not automatic — recognized exceptions (for example, grave risk of harm or a mature child’s objection) remain available and will be considered on remand.

Dissents or concurrances

Justice Stevens (joined by Justices Thomas and Breyer) dissented, arguing a travel veto is an access or visitation safeguard, not a custody right, and warned the decision may force returns even when contrary to a child’s best interests.