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Family Law

The leading authority on all aspects of family law

19 MAY 2010

US Supreme Court upholds Hague Convention rights

US Supreme Court - Copyright iStockphoto/hundreddaysThe US Supreme court has ruled that a British father seeking the return of his son who was taken by the child's mother from Chile to Texas, has a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction.

The ruling is significant because it is the first time the Convention has been tested in the US and now all State and Federal courts must abide by the decision, making the international treaty available as a remedy for more parents. 

After the couple separated in Chile, the Chilean courts granted the wife daily care and control of their son, while awarding the husband visitation rights. The father was also awarded a ne exeat right ­- the right to consent before his ex-wife could take the child out of the country.

When the mother brought the child to Texas without the father's permission, he filed a suit in the Federal District Court, seeking an order under the Convention requiring his son's return to Chile. The District Court denied relief, holding that the father's ne exeat right did not constitute a "right of custody" under the Convention and therefore preventing access to the return remedy. The New Orleans-based 5th US Circuit Court of Appeals agreed.

The Supreme Court ruled six-to-three to reverse the appeals court decision. In the judgment, Justice Anthony Kennedy said: "To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes."

However, the court cautioned that their decision did not mean the child would automatically be returned to Chile.

"While a parent possessing the ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies," Justice Kennedy wrote.

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