In Abbott v Abbott, --- S.Ct. ----, 2010 WL 1946730  the U.S. Supreme Court, in an opinion by Justice Kennedy, held that father's ne exeat right granted by Chilean law was a "right of custody," under the Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, and Gonzalez v. Gutierrez, 311 F.3d 942.

Timothy Abbott and Jacquelyn Abbott married in England in 1992. He was a British citizen, and she was a citizen of the United States. Their son A.J. A. was born in 1995. The Abbotts 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 Mr. Abbott what is commonly known as a ne exeat right: a right to consent before Ms. Abbott could take A.J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), (granting a ne exeat right to any parent with visitation rights). Justice Kennedy noted that in effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott obtained a British passport for A.J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a "ne exeat of the minor" order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In May 2006, Mr. Abbott filed an 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.

In July 2007, after holding a bench trial during which only Mr. Abbott testified, 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. (495 F.Supp.2d 635, 640.)

The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under theConvention because his ne exeat right was only "a veto right over his son's departure from Chile.". The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary definitions of "custody" and noting that ne exeat rights cannot be " 'actually exercised' " within the meaning of the Convention, Croll held that ne exeat rights are not rights of custody. A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it "provides a parent with decision making authority regarding a child's international relocation." The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. ----, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).

Justice Kennedy noted that the provisions of the Convention of most relevance at the outset of the discussion are as follows:

"Article 3: The removal or the retention of the child is to be considered wrongful where--"a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and "b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

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"Article 5: For the purposes of this Convention-- "a 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; "b 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

He also noted that the Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must "order the return of the child forthwith," unless certain exceptions apply. A removal is "wrongful" where the child was removed in violation of "rights of custody." The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a). A return remedy does not alter the pre--abduction allocation of custody rights but leaves custodial decisions to the

courts of the country of habitual residence. Art. 19. The Convention also recognizes "rights of access," but offers no return remedy for a breach of those rights. Arts. 5(b), 21.

The parties agreed that the Convention applied to this dispute. A.J. A. was under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question was whether A.J. A. was "wrongfully removed" from Chile, in other words, whether he was removed in violation of a right of custody.

The Court's inquiry was shaped by the text of the Convention; the views of the United States Department of State; decisions addressing the meaning of "rights of custody" in courts of other contracting states; and the purposes of the Convention, which were all discussed in the opinion. After considering these sources, the Court determined that Mr. Abbott's ne exeat right is a right of custody under the Convention.

The Court consulted Chilean law to determine the content of Mr. Abbott's right, while following the Convention's text and structure to decide whether the right at issue is a "righ[t] of custody." Chilean law granted Mr. Abbott a joint right to decide his child's country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), provides that "[o]nce the court has decreed" that one of the parents has visitation rights, that parent's "authorization ... shall also be required" before the child may be taken out of the country, subject to court override only where authorization "cannot be granted or is denied without good reason." Mr. Abbott had "direct and regular" visitation rights and it followed from Chilean law, that he had a shared right to determine his son's country of residence under this provision.

To support the conclusion that Mr. Abbott's right under Chilean law gave him a joint right to decide his son's country of residence, it was notable that a Chilean agency had explained that Minors Law 16,618 is a "right to authorize the minors' exit" from Chile and that this provision means that neither parent can "unilaterally" "establish the [child's] place of residence." (Citing Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Exploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08-775, pp. 35a-37a, cert. pending.)

Justice Kennedy stated that the Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a); and Mr. Abbott's joint right to determine his son's country of residence was best classified as a joint right of custody, as the Convention defines that term. The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a), . Mr. Abbott's ne exeat right gave him both the joint "right to determine the child's place of residence" and joint "rights relating to the care of the person of the child." Mr. Abbott's joint right to decide A.J. A.'s country of residence allowed him to "determine the child's place of residence." The Convention's protection of a parent's custodial "right to determine the child's place of residence" includes a ne exeat right. Mr. Abbott's joint right to determine A.J. A.'s country of residence also gives him "rights relating to the care of the person of the child." The Court of Appeals described Mr. Abbott's right to take part in making this decision as a mere "veto," 542 F.3d, at 1087; but even by that truncated description, the father had an essential role in deciding the boy's country of residence. For example, Mr. Abbott could condition his consent to a change in country on A.J. A.'s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued contact with the boy.

Justice Kennedy indicated that it was "is beside the point" whether a ne exeat right does not fit within traditional notions of physical custody The Convention defines "rights of custody," and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. The Court of Appeals' conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. Any suggestion that a ne exeat right is a "righ[t] of access" is illogical and atextual.

Ms. Abbott contended that the Chilean court's ne exeat order contained no parental consent provision and so awarded the father no rights, custodial or otherwise). Justice Kennedy responded that even a ne exeat order issued to protect a court's jurisdiction pending issuance of further decrees is consistent with allowing a parent to object to the child's removal from the country. The Court did not decide the status of ne exeat orders lacking parental consent provisions, however; for here the father relied on his rights under Minors Law 16,618. Mr. Abbott's rights derived not from the order but from Minors Law 16,618. That law requires the father's consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child's country of residence. This is a right of custody under the Convention.

Justice Kennedy noted that the "Perez-Vera Report", was cited by the parties and by Courts of Appeals that have considered this issue. (See 1980 Conference de La Haye de droit international prive, Enl & egrave; vement d'enfants, E. Perez-Vera, Explanatory Report (Perez-Vera Report or Report), in 3 Actes et Documents de la Quatorzi & egrave;me session, pp. 425- 473 (1982). Justice Kennedy stated that the Court need not decide whether this Report should be given greater weight than a scholarly commentary. He pointed out that the Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10503-10506 (1986) identifying the Report as the "official history" of the Convention and "a source of background on the meaning of the provisions of the Convention", indicates that the Report had not been approved by the Conference, and it is possible that, despite the Rapporter's [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective".

Justice Kennedy pointed out that while a parent possessing a 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. One exception states return of the child is not required when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Art. 13(b). If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer "psychological harm" or be placed "in an intolerable situation." The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient "age and degree of maturity at which it is appropriate to take account of its views." Art. 13(b). The proper interpretation and application of these and other exceptions are not before the Court. It stated that these matters may be addressed on remand. The judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion. Chief Judge Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor joined. Justice Stevens, with whom Justice Thomas and Justice Breyer joined, dissented in a separate opinion.