U.S. Supreme Court to Hear International Parental Kidnapping Case
July 3rd, 2009 by Robert Franklin, Esq.The United States Supreme Court has agreed to hear a case interpreting the Hague Convention on the Civil Aspects of International Child Abduction. Read the article here (Boston Herald, 6/29/09). The case, Abbott vs. Abbott, involves an issue that we've run into before and that lower federal courts and the courts of various countries disagree over.
The Hague Convention was adopted in 1980 to address the then-growing problem of international parental kidnapping. It requires signatory countries to return a kidnapped child to its home country if one parent has absconded with the child. It's worked reasonably well except for one inconsistency. A parent can only request that a foreign country return the child if he/she has custodial rights to the child, and that, depending on the laws of the original country can be questionable.
Specifically, what we might call the noncustodial parent often is judged, under the Convention, to have only rights of access to the child, not rights of custody. Therefore, if a custodial parent in the United States takes a child to another signatory nation, the noncustodial parent may find him/herself without a remedy under the Convention.
That has even been found in cases in which a parent sought to protect him/herself via a ne exeat clause in the custody order. A ne exeat clause orders the custodial parent to keep the child within a particular geographic area unless the court allows a move.
As I said, lower federal courts disagree on whether that is the correct reading of the treaty language and the U.S. Supreme Court has decided to rule on the matter. The Obama administration, through the U.S. Justice Department, has filed a brief in Abbott on behalf of the noncustodial father.
In an earlier case, Croll vs. Croll, the federal appellate court for the Second Circuit ruled that, even in cases in which the noncustodial parent has a ne exeat clause, he/she is not a custodial parent under the Convention and therefore has no remedy. In that case, Judge Sonia Sotomayor dissented from the majority opinion and argued for a broader interpretation of custody to permit noncustodial parents to be able to enforce the provisions of the Convention.
So, if she's confirmed, Sotomayor will have an opportunity to convince her new colleagues read the Convention as granting a remedy to noncustodial parents whose children have been kidnapped by the other parent. But she may face an uphill battle; the conservative court majority often wants to take a narrow view of statutory language. If that view wins in Abbott, noncustodial parents lose.
Stay tuned.
If you're really super-interested in this issue, here's a law review article on it (Brooklyn Journal of International Law).
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July 3rd, 2009 at 11:36 am
I am both a custodial and a non custodial parent. My obligations have been established by a court as far as visitation, medical etc. pertains. I received custody of my daughter when her mom took off to another state, not letting me know where she was for a 6 month period. In my state, the Court look at #1, which parent would better foster a relationship between a child and the other parent. If I were to keep my daughter from her mom, violating a court order, I would expect to be held accountable for doing so. Skipping the country, I would expect myself to be held to the same as I would in the states. I look at her visitation as being a transfer of parental rights during the time of her visits. As long as my child is not in danger, I don't have the right to interfere with her visits and going to a different country the same should apply.
July 3rd, 2009 at 1:52 pm
A brand new Kay Hymowitz* article, appearing in today's WSJ. Entitled "Losing Confidence in Marriage":
http://online.wsj.com/article/SB124658294270189935.html
* Kay had previously made waves with her "Peter Pan in the Promised Land", and the "Love in the Time of Darwinism" articles on the City Journal where she is a contributing editor.
July 4th, 2009 at 12:51 pm
This article presents another view of Judge Sotomayor however I see a bigger picture too of the subtle manipulations of perception - a magical judicial optics show.
Firstly as an MRA, I agree that the Hague Convention has been frequently ignored as to rights pertaining to fathers and by extension to children - not so much mothers however although there are undoubtedly those rarer cases too.
In addition, I do however find it troubling that only one Judge - Judge Sotomayor - amongst the many, claimed that the Hague Convention interpretation as they pertain to non-custodial parents - fathers especially - is of any value. Now at this time, the Supreme Court has also found it warrants further examination.
In my view, it is the efforts of more liberal minded Justices and Judges to effectively slam the door of recourse on non-custodial parents violated by move away custodial parents by causing the current conservative majority on the Supreme Court to render a decision, in other words use the likely literal interpretation of Court conservatives to drive another nefarious spike into the hearts of fathers and children.
July 4th, 2009 at 1:19 pm
I put in a vote of no confidence.
July 4th, 2009 at 2:21 pm
Lower Court feminists are manipulating the legal system ...again ! The Supreme court will rule that noncustodial parents a.k.a. mostly fathers have no rights. Feminists are merely taking advantage of the conservative majority of the Court to slam another door on non-custodial faces since the literal letter of the law with respect to the Hague Convention - in the conservative view - must be adhered to.
July 7th, 2009 at 9:30 am
What is more important than the "pick-and-choose our cases" Supreme Court’s willingness to hear about the Goldman case, and potentially far more beneficial toward the fight against the Family Law and Child Support Collection Industries here in America, is the fact that both President Obama and Mrs. Clinton have personally expressed concern about the case with high ranking officials while they were visiting Brazil recently; the Supreme Court couldn't give a rat's behind about fathers and children in this country. The High Court demonstrated their disdain for Dads, and their coziness with the Family Law status quo, when several years ago, they refused to hear the case of a man who had been paying child support for three children that DNA evidence had proven he did not father. I’ve been crusading – in my own way – against the nightmare that is the Family Law and Child Support Collection Gestapo since 1991. I’ve studied it all, and I am convinced, more than ever before, that the only effective way to fight this fight is to inform tax payers - who haven’t had to appear in Family Court themselves – about the rip off that is Federally Subsidized case management and child support collection regime at the State level that their Form 1040 is financing. California alone receives over $950 million Federal Dollars every year for those two efforts. As a judge told me when I received my first traffic citation, thirty-five years ago: “The best place to hurt a law abiding citizen, is in the pocket book”