The Abbott v. Abbott Case

Abbott v. Abbott (2010) 130 S.Ct. 1983, is one of the few custody cases that has been decided by the United States Supreme Court. Usually family law matters are decided in state courts and subject to local rule. In California, they are decided in the county where the parties live. For instance if the parties live in Laguna Hills, the court in Orange County will be hear the case. When custody issues concern international law and the Hague Convention, then the custody case may be heard by a federal court.

The parties had been married and were separated while living in Chile. The Chilean courts gave the mother custody of the child with the father having visitation. The Chilean order also gave the father ne exeat orders. The ne exeat orders prevented the mother from taking the child out of the country. The only way the mother could take the child out of the country was if she had the father’s permission or a court order.

The mother moved to Texas with the minor child. She did not obtain the father’s consent before she moved. In addition she did not obtain the Chilean Court’s consent. After moving to Texas the mother filed a modification of the father’s rights in state court. The father brought an action in federal court seeking an order for his son’s return to Chile pursuant to the Hague Convention and the enforcement provisions of the ICARA (International Child Abduction Remedies Act). The purpose of the Hague Convention is to return children who have been allegedly kidnaped by a parent and moved to a foreign country. It is a treaty between several countries. The trial court held that the ne exeat orders did not constitute a right of custody under the Hague Convention and therefore the return remedy was not available to the father. 

The United States Court of Appeals for the Fifth Circuit affirmed the order stating that a ne exeat order did not give the father the rights of custody under the Hague Convention because his ne exeat right was only a veto power.

The United States Supreme Court agreed to hear the case. The Supreme Court held that the ne exeat right is a right of custody and therefore the Hague Convention applied and the son must be returned to Chile.

If you need legal advice and are looking for a family law lawyer in Orange County to address a Hague Convention issue, please consider Treviño Law. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway. 

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.