Thanks Peter Hill for the heads up on this one…
By the A.M. Costa Rica staff
The U.S. Supreme Court will hear oral arguments Monday in a case that seeks to define an aspect of custody rights under the Hague Convention on the Civil Aspects of International Child Abduction.
The mother involved is a U.S. citizen. The father is British, and the prior country of residence of the child is Chile. The child is now in the United States. The issue seems to be a very technical one, but legal observers said they believe the case will have an impact on international child custody battles where one parent abducts a child to or from the United States.
Timothy and Jacquelyn Abbott were married in 1992 in England, and their son was born in Hawaii in 1995. They divorced in Chile, and the court there gave custody of the child to the mother and gave the father visitation rights. A key element of the decision was that the court in Chile issued a ne exeat order preventing either parent from taking the child from Chile without the agreement of the other.
Mrs. Abbott took her son to Texas without the consent of the ex-husband, who managed to locate the boy. He went to court and said that the Hague convention required that a child who has been removed contrary to a custody order be returned to the country of residence. The technical question is if the ne exeat order represents a right of custody.
A trial court and the Fifth Circuit Court of Appeals agreed with the wife that the legal order only provides a right of access to the father and not a right of custody. Her lawyers also argued that having custody also means having the right to choose where the child lives.
A number of organizations have filed briefs that support the position of one or the other parent. Some domestic violence organizations said they fear that accepting the order as a right of custody would prevent wives from fleeing from abuse.
A decision for the father by the Supreme Court would strengthen the rights of non-custodial parents involved in international parenting disputes.
The main goal of the Hague convention is to insure that the legal decisions of one country are respected in another. The international treaty is designed to prevent spouses from shopping for a favorable venue for their custody battles.
The Abbott case involves a U.S. mother trying to keep her son there contrary to a custody decision in another country. In Costa Rica the situation usually is a mother trying to keep her child or children here in the face of a custody decision in another country, frequently the United States.