International Child-Taking Focus of Supreme Court

     WASHINGTON (CN) – The Supreme Court heard arguments Tuesday over whether a boy taken from Chile by his American mother against his father’s will should be sent back in compliance with international anti-kidnapping laws. Justice Stephen Breyer was openly critical of returning the child, saying the dad’s interpretation of international laws would suggest the kid should be returned even to “Frankenstein’s monster.”

     After the boy’s parents divorced, Chile granted American mother Jacquelyn Vaye Abbott daily care and control of the now 14-year-old boy, while allowing British father Timothy Mark Cameron Abbott regular visitation rights, including a one-month slice during the boy’s summer vacation.
     Faced with visa restrictions on work and rent and untimely child support payments from the father, the mother moved from Chile to Texas with the boy, who was about ten-years-old at the time. In doing so, she violated a Chilean order that neither parent move the child out of Chile without the other parent’s consent.
     Under the international agreement, nations must return children to the country from where they were abducted if someone with custody of the child objects to the child’s move.
     Amy Howe from Howe & Russell represented the father. She argued that the dad’s visitation rights and his right to keep the child in Chile constitute custody and that the Hague Convention therefore applies.
     Justice John Paul Stevens appeared to disagree, suggesting that the mother has full custody of the child in saying that the case is “clearly not” a joint-custody case.
     Breyer appeared to favor the mother over the father because of her gender. He said that equating the father’s various rights to custody rights would force the child to return to his country of origin. “Why give that kind of interpretation to this statute, which seems to have the purpose of looking after women and children?”
     He seemed to reject Howe’s broad interpretation of custody, which he said would let even “Frankenstein’s monster” have custody of his child. “Why should we interpret the word ‘custody’ in this treaty to include even that situation, which turns the treaty into a general ‘Return the child, no matter what?'” he asked.
     Ginsburg questioned whether the international laws intended to deal with cases like this. “This case is not the usual case. The usual case is the non-custodial parent takes the child out of the country where the custodial parent lives, and internationally, there was a huge problem of getting the child back and that’s why we have the Hague Convention on abduction.”
     Karl Hays represented the mother. He argued that the father’s visitation rights did not equate to custodial rights, noting that the Hague Convention distinguishes between those rights and that it only requires return of the child when a parent’s custodial rights are violated. He said the parent providing care has the custodial rights under the treaty.
     But Justice Sonia Sotomayor was quick to express skepticism. “That’s a little tough because parents provide care in so many different ways,” she said, adding that the deal’s forgers defined care in part as the right to determine the child’s place of residence.
     Justice Samuel Alito followed up. “Suppose there is a court order that prohibits the parent with whom the child lives most of the time from moving more than an hour’s drive from the prior place of residence, would the other parent then have custody?” he asked.
     Ginsburg suggested that the Hague Convention might apply to the case. “You could say that the mother did not have full custodial rights. One custodial right is certainly to determine where the child will live. And the mother did not have that right with respect to taking the child out of the country,” she said, then spoke of the father. “If he has the right to say no, don’t take the child out of the country, than he has something more than a right of access.”
     Justice Antonin Scalia took a different approach. He said that most signatories of the treaty have ruled against the mother’s arguments. “The purpose of a treaty is to have everybody doing the same thing, and if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus other countries that are signatories to the treaty.”
     The Obama Administration argued amicus curiae on behalf of the father.
     A Texas district court ruled that the boy’s removal from Chile did not violate the Hague Convention because the father did not have custody of his son. The court of appeals confirmed.
     Towards the end of the arguments, Breyer asked the mother’s lawyer, “Why didn’t your client just ask the judge there to leave Chile?” The courts there have the power to override the father’s objection to the boy’s emigration. Hays replied, “Your Honor, I don’t know.

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