Abbott v. Abbott

130 S.Ct. 1983 (2010)


H and W were married in England in 1992. H is a British citizen, and W is a citizen of the United States. Their son A.J. A. was born in 1995 in Hawaii. They moved to La Serena, Chile, in 2002. There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child while awarding the father 'direct and regular' visitation rights, including visitation every other weekend and for the whole month of February each year. Chilean law conferred upon H a ne exeat right: a right to consent before W could take A.J. A. out of Chile. H obtained a British passport for A.J. A. W than sought and obtained a 'ne exeat of the minor' order from the Chilean family court, prohibiting the boy from being taken out of Chile. W removed the boy from Chile without permission from either H or the court. A private investigator located the mother and the child in Texas. W filed for divorce in Texas state court. Part of the relief she sought was a modification of the H's rights, including full power in her to determine the boy's place of residence and an order limiting H to supervised visitation in Texas. This litigation remains pending. H brought an action in Texas state court, asking for visitation rights and an order requiring W to show cause why the court should not allow H to return to Chile with A.J. A. The court denied H's requested relief. H filed the instant action in the United States District Court seeking an order requiring his son's return to Chile pursuant to the Convention and enforcement provisions of the ICARA. The District Court denied relief. The court held that the father's ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The Supreme Court granted certiorari.