One Size Fits All: The Supreme Court's Interpretation of Ne Exeat Rights for Purposes of the Hague Convention

Abstract

With wrongful child abductions occurring worldwide, the Hague Convention on the Civil Aspects of International Child Abduction was drafted for the purpose of protecting children from its harmful effects. The United States implemented provisions of the Hague Convention in 1988 into the International Child Abduction Remedies Act, for the same purpose. Under the two, the drafters draw a distinction between of and of access, the determination of which would ultimately establish a parent’s right to the return remedy under the Convention. Specifically, if a parent has of a wrongfully abducted child would be ordered back by the abducting parent where as a parent with of has no such remedy.In Spring 2010, Abbott v. Abbott which entailed the interpretation of of and of under the Hague Convention was heard and decided by the United States Supreme Court. In Abbott, a Chiliean custody ordered granted a father access rights coupled with a ne exeat clause preventing the custodial parent from leaving the country without permission. The issue was whether these rights coupled together amounted to of which would entitle the father to the return remedy. Thus, the mother would have to return the child to Chile. With the facts and circumstances unique to Abbott, the United States Supreme Court held that ne exeat rights do confer rights of custody for purposes of the Convention. This paper will examine the danger in the Court’s ruling and long lasting negative effects that it is likely to have on the nation and international communities.