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In Abbott v Abbott, 495 F.Supp.2d 635 (W.D.
Texas, 2007) Mr. and Ms. Abbott’s son, A.J.A., was born in Hilo, Hawaii
in 1995. They resided in La Serena, Chile for approximately three years
beginning in 2002 and separated in the month of March, 2003. The Chilean
court granted daily care and control of A.J.A. to Ms. Abbott and granted
Mr. Abbott specific "direct and regular" visitation rights. At Ms.
Abbott's request, on January 13, 2004, the Chilean court rendered an
Orden de Arriago, or ne exeat order, prohibiting A.J.A.'s removal from
Chile by either Mr. Abbott or Ms. Abbott without their mutual consent.
On August 26, 2005, Ms. Abbott removed A.J.A. from Chile to the United
States without Mr. Abbott's prior knowledge or consent and in violation
of the Chilean ne exeat order. At the time Mr. Abbott filed the
Complaint for return in May 2006 Ms. Abbott and A.J.A. resided in Hays
County, Texas. The parties did not dispute that the Hague Convention
applied to A.J.A. who was under sixteen years of age and was "habitually
resident" in Chile, a contracting state to the Hague Convention, at the
time of his removal. The parties' dispute was whether A.J.A.'s removal
was "wrongful" within the meaning of the Hague Convention, which
provides that a removal or the retention of a child is to be considered
wrongful where it is in breach of rights of custody attributed to a
person under the law of the State in which the child was habitually
resident immediately before the removal or retention. Acknowledging that
the ne exeat order rendered by the Chilean court on January 13, 2004,
prohibited either parent's removal of A.J.A. without the other parent's
consent, Ms. Abbott conceded that her removal of A.J.A. from Chile was
in violation of Chilean law. The Court noted that it may order A.J.A.'s
return to Chile, however, only if Ms. Abbott's violation of Chilean law
constituted a "wrongful" removal as defined by the Hague Convention. Mr.
Abbott asserted that the removal was wrongful because the ne exeat order
created a "right[ ] of custody attributed to" Mr. Abbott under Chilean
law, which was breached by Ms. Abbott's removal of A.J.A. from Chile.
The Court also noted that Chilean law also requires the authorization of
Mr. Abbott, as a parent with visitation rights, prior to a departure by
A.J.A. from Chile. MINOR'S LAW 16,618 art. 49 (Chile). This Court found
that this statute did not confer rights distinguishable in any
significant way from those conferred by the Chilean court's ne exeat
order.
The Court pointed out that the majority of
federal courts considering the issue have determined that a ne exeat
order or statutory ne exeat provision does not accord rights of custody
to a parent under the Hague Convention. (Citing Fawcett v. McRoberts,
326 F.3d 491 (4th Cir.2003); Gonzalez v. Gutierrez, 311 F.3d 942 (9th
Cir.2002); Croll v.Croll, 229 F.3d 133 (2nd Cir.2000). It noted that the
Court of Appeals for the Eleventh Circuit has reached the opposite
conclusion in Furnes v. Reeves, 362 F.3d 702 (11th Cir.2004), but it
found this case distinguishable from Furnes, which concluded that the
father held a right of custody when he had joint parental responsibility
combined with the authority stemming from the ne exeat clause.
(distinguishing Croll on basis that father's "ne exeat right must be
considered in the context of his additional decision-making rights by
virtue of his joint 'parental responsibility' under Norwegian law").
Unlike the father in Furnes, Mr. Abbott did not have Chilean statutorily
protected rights to make decisions affecting A.J.A.'s care and was
guided by Fawcett, Gonzalez, and Croll, finding these cases persuasive
and directly applicable to the case sub judice. Mr. Abbott argued that
Chilean law conferred "residual" rights to care for the person of A.J.A.,
pointing to a statute that provides that a parent "who is not personally
responsible for the care of a child will not be deprived of the right
... to maintain a direct and regular relationship with the child." (CODE
CIVIL art. 229 (Chile). The Court disagreed, concluding that article 229
by its plain terms addressed only visitation rights, not rights to care
for a child or other rights of custody as that term is defined by the
Hague Convention. The Court noted that the Hague Convention defines
rights of custody as "rights relating to the care of the person of the
child and, in particular, the right to determine the child's place of
residence." Applying the Hague Convention's definition, the Court found
that the Chilean ne exeat order did not accord Mr. Abbott any rights
relating to the care of A.J.A.'s person. Neither did the order grant Mr.
Abbott a right to "determine" A.J.A.'s place of residence; it merely
granted Mr. Abbott the authority to prevent Ms. Abbott from taking A.J.A.
to a location outside of Chile by withholding his consent. The order
granted Mr. Abbott no more than a veto power over specific places of
residence that Ms. Abbott might have selected for A.J.A., without any
accompanying power to control A.J.A.'s actual residence. The Court
concluded that the Chilean court's ne exeat order, prohibiting the
removal of A.J.A. from Chile by either parent without the consent of the
other parent, did not confer rights of custody on Mr. Abbott. He did not
demonstrate that Ms. Abbott's removal of A.J.A. from Chile, although in
violation of a proper order of a Chilean court, breached Mr. Abbott's
rights of custody and was thus "wrongful" under the Hague Convention.
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