U.S. Supreme Court to Hear International Parental Kidnapping Case

The United States Supreme Court has agreed to hear a case interpreting the Hague Convention on the Civil Aspects of International Child Abduction.  Read the article here (Boston Herald, 6/29/09).  The case, Abbott vs. Abbott, involves an issue that we've run into before and that lower federal courts and the courts of various countries disagree over.

The Hague Convention was adopted in 1980 to address the then-growing problem of international parental kidnapping.  It requires signatory countries to return a kidnapped child to its home country if one parent has absconded with the child.  It's worked reasonably well except for one inconsistency.  A parent can only request that a foreign country return the child if he/she has custodial rights to the child, and that, depending on the laws of the original country can be questionable.

Specifically, what we might call the noncustodial parent often is judged, under the Convention, to have only rights of access to the child, not rights of custody.  Therefore, if a custodial parent in the United States takes a child to another signatory nation, the noncustodial parent may find him/herself without a remedy under the Convention.

That has even been found in cases in which a parent sought to protect him/herself via a ne exeat clause in the custody order.  A ne exeat clause orders the custodial parent to keep the child within a particular geographic area unless the court allows a move.

As I said, lower federal courts disagree on whether that is the correct reading of the treaty language and the U.S. Supreme Court has decided to rule on the matter.  The Obama administration, through the U.S. Justice Department, has filed a brief in Abbott on behalf of the noncustodial father.

In an earlier case, Croll vs. Croll, the federal appellate court for the Second Circuit ruled that, even in cases in which the noncustodial parent has a ne exeat clause, he/she is not a custodial parent under the Convention and therefore has no remedy.  In that case, Judge Sonia Sotomayor dissented from the majority opinion and argued for a broader interpretation of custody to permit noncustodial parents to be able to enforce the provisions of the Convention.

So, if she's confirmed, Sotomayor will have an opportunity to convince her new colleagues read the Convention as granting a remedy to noncustodial parents whose children have been kidnapped by the other parent.  But she may face an uphill battle; the conservative court majority often wants to take a narrow view of statutory language.  If that view wins in Abbott, noncustodial parents lose.

Stay tuned.

If you're really super-interested in this issue, here's a law review article on it (Brooklyn Journal of International Law).

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