(CN) – An American mother may have violated an international anti-kidnapping treaty by moving her son from Chile to Texas against his father’s wishes, the Supreme Court ruled Monday, reviving the father’s bid for the boy’s return.
“Requiring a return remedy in cases like this one helps deter child abductions and respects the [Hague] Convention’s purpose to prevent harms resulting from abductions,” Justice Anthony Kennedy wrote for the 6-3 majority.
The case involved a custody battle between Timothy and Jacquelyn Abbott, expatriates who moved to Chile with their son in 2002. When the couple separated the following year, the Chilean courts granted Jacquelyn primary custody of the boy. Timothy got to see his son regularly, including every other weekend and one full month each year.
He also had the right to stop Jacquelyn from taking their son out of the country without his consent.
In August 2005, Jacquelyn moved with her son to Texas, where she filed for divorce.
Timothy sued Jacquelyn in state court for visitation rights and won “liberal periods of possession,” but the court stopped short of order the boy’s return. Timothy then filed a lawsuit in federal court, asking the judge to order his son’s return under the Hague Convention.
The district court and the 5th Circuit ruled that Timothy had no “rights of custody” under the international treaty; he only had “a veto right over his son’s departure from Chile.”
The Supreme Court disagreed.
“Few decisions are as significant as the language the child speaks, the identity he finds, or the culture and traditions she will come to absorb,” Kennedy wrote. “These factors, so essential to self-definition, are linked in an inextricable way to the child’s country of residence.”
Kennedy said the father’s “essential role in deciding the boy’s country of residence” falls under the treaty’s definition of “rights of custody.” This view has been confirmed by international rulings, the State Department and scholars, Kennedy said, and it falls in line with the convention’s principle that “the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.”
The majority reversed and remanded, but the ruling does necessarily mean the boy will be returned to Chile. A child does not have to be returned if the abducting parent — in this case, the boy’s mother — can establish that an exception to the treaty applies, such as the exemption made for children who face a “grave risk” of harm if returned.
Dissenting Justice John Paul Stevens rejected the notion that a travel restriction constitutes a custody right. In his view, the drafters of the Convention meant for the return remedy to apply when a non-custodial parent abducts a child across international borders. In the Abbotts’ case, he noted, the mother who took her son to Texas was the custodial parent.
“To say that a limited power to veto a child’s travel plans confers, also, a right ‘relating to the care’ of that child devalues the great wealth of decisions a custodial parent makes on a daily basis to attend to a child’s needs and development,” Stevens wrote.
Justices Clarence Thomas and Stephen Breyer joined the dissenting opinion.