The Unites States Supreme Court recently delivered an interesting opinion dealing with issues of child custody and international law. The main issue to be addressed by the court was the precise meaning of “ne exeat” clauses in child custody orders.

The case, Abbott v. Abbott, involved a British father and an American mother who had been living with their child in Chile when they separated in 2003. At the time of the separation, the Chilean courts granted the mother daily care and control of the child and also awarded the father visitation rights. In addition, the Chilean court granted the father a ne exeat right to consent before the child could be taken out of Chile.

The mother later moved back to the United States in search of work and eventually settled in Texas. When the father located them, he attempted to enforce the ne exeat right and have the child brought back to Chile.

Because the U.S. federal courts have disagreed on the meaning of ne exeat rights, the Supreme Court heard the case.

The Supreme Court held that the ne exeat clause conferred a “right of custody” on the father with the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. Therefore, the father could seek the return of the child under the Hague Convention.

Three members of the Supreme Court dissented in the case saying that the ne exeat clause should be construed as “travel restriction” instead of a right of custody. They argued that this ruling essentially expanded the father’s rights from visitation rights to full joint custody.

Despite the opinion, it is not clear that the child will be forced to return to Chile. Numerous treaty exceptions may prevent the father from using the return remedy. For example, decisions may be based on the child’s maturity and objections to returning, or based on the potential for a grave risk of physical or psychological harm to the child.

Related Resource:

  • “Treaty Trumps Parental Rights, Says Court” (Fulton County Daily Report)