7 FAM 1700 Appendix D
u.s. supreme court decisions regarding international
PARENTAL CHILD ABDUCTION
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1710 Appendix D introduction
(CT:CON-795; 03-06-2018)
The U.S. Supreme Court has considered the issues of
international parental child abduction on various occasions. This appendix
compiles these cases in chronological order. They include decisions on the
Hague Convention on International Parental Child Abduction (Hague Abduction
Convention).
7 FAM 1720 Appendix d ABBOTT V. ABBOTT
(CT:CON-795; 03-06-2018)
a. Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983, 176
L.Ed.2d 789 (2010), was a case before the Supreme Court of the United States,
in which the Court held that a parent's ne exeat right is a "right to
custody" under the Hague Convention on the Civil Aspects of International
Child Abduction (the Convention) and the US International Child Abduction
Remedies Act.
b. A Chilean court had granted physical custody to the
mother and a ne exeat right to the fatherthat is, the right to consent before
the mother could remove the child from Chileand a Chilean statute also gave
the father a ne exeat right prior to the mother's decision to remove the child
from Chile to the United States.
c. The Court based its decision on the text of Article
5 of the Convention, gave deference to the Departments expressed view that a
ne exeat right is a right of custody, and observed that this conclusion accords
with most of the available relevant judicial decisions from other states
parties, as well as the views of many scholars.
7 FAM 1730 Appendix d cHAFIN V. CHAFIN
(CT:CON-795; 03-06-2018)
a. Chafin v. Chafin, 133 S.Ct. 1017 (2013) presented a
different inquiry for the Court: mootness under Article III of the U.S.
Constitution.
b. The Court ruled that a court-ordered return under
the Hague Convention on the Civil Aspects of International Child Abduction (the
Convention) does not make a subsequent appeal moot.
c. The Court held that there was still a live
controversy between the parties and that, if a return automatically mooted an
appeal, courts would be more likely to grant stays pending appeal delaying
returns under the Convention and causing more parents to appeal. Those results
would be contrary to the principles of the Convention. The Court included
useful language that encourages courts at all levels to expedite these
cases.
7 FAM 1740 Appendix d Lozano v.
Montoya Alvarez
(CT:CON-795; 03-06-2018)
a. Lozano v. Montoya Alvarez, 134 S.Ct. 1224 (2014)
addressed the issue of whether the one-year period set out in Article 12 of the
Convention is subject to equitable tolling (a pause in the running of the time
limit within which an action must be brought).
b. Pursuant to Article 12, a court must order the
childs return to her habitual residence, unless after one year from the time
of the wrongful removal/retention, it is demonstrated that the child is settled
in her new environment.
c. The Court explained that the one-year period is not
a statute of limitations, as the end of the one-year period does not eliminate
the remedy the Convention affords the left-behind period, and held that the
one-year period may not be equitably tolled, even where the abducting parent
concealed the childs whereabouts until after the one year period had passed.
7 FAM 1750 Appendix D through 7 FAM 1790 Appendix D Unassigned