By Associated Press
Monday, June 29, 2009
WASHINGTON — The Supreme Court agreed today to hear arguments in a child custody dispute between a Texas mother and a British father that tests the boundaries of an international treaty.
The court will take its first look at how American authorities handle the Hague Convention on child abduction, aimed at preventing one parent from taking children to other countries without the other’s permission.
Adding to the case’s interest, the Obama administration joined the call for court review by approvingly citing a dissenting appeals court opinion by Supreme Court nominee Sonia Sotomayor in a similar case.
If confirmed, Sotomayor would sit on the court that hears the case next term.
The United States is among more than 80 countries that follow the treaty.
In this case, Timothy Abbott accused his estranged wife, Jacquelyn Abbott, of violating a court order in Chile by taking their 10-year-old son to Texas without his consent. The child, born in Hawaii, is a U.S. citizen.
Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The mother argued that she has exclusive custody of the boy and that U.S. courts are powerless under the treaty to order his return.
A federal judge acknowledged that taking the son to the United States violated the Chilean court order, but sided with the mother and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.
Only a parent who has custodial rights can invoke the treaty to try to get the child returned, the appeals court said.
Federal appeals courts in New York, Richmond, Va., and San Francisco have ruled the same way, but the appeals court in Atlanta has disagreed.
The issue for the justices is whether a foreign court order like the one issued in Chile conveys a right of custody to the parent who has been left behind.
The administration sided with Timothy Abbott in saying it does. A parent like Timothy Abbott “has the ability to decide whether or not the child may be taken outside of the country of habitual residence, and thus the right to share in the decision as to where the child will reside,” Solicitor General Elena Kagan wrote.
Kagan’s brief quotes from Sotomayor’s dissent in a case over a mother’s decision to move with her daughter from Hong Kong to New York without either a court’s permission or the father’s consent and in violation of a Hong Kong judge’s order.
A divided panel of the 2nd U.S. Circuit Court of Appeals ruled in favor of the mother. Sotomayor said such court orders limit a parent’s custodial rights to the country where the parents and child live.
Taking the child out of the country without the other parent’s consent is the situation the treaty was designed to prevent, she said.
The case is Abbott v. Abbott, 08-645