7 FAM 1700 Appendix D
u.s. supreme court decisions regarding international PARENTAL CHILD ABDUCTION
(CT:CON-952; 11-15-2022)
(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 father—that is, the right to consent before the mother could remove the child from Chile—and 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 Department’s 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-952; 11-15-2022)
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 child’s return to their habitual residence, unless after one year from the time of the wrongful removal/retention, it is demonstrated that the child is settled in their 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 child’s whereabouts until after the one year period had passed.
7 FAM 1750 Appendix D Monasky v. Taglieri
(CT:CON-920; 08-06-2021)
a. Monasky v. Taglieri, 140 S.CT. 719 (2020) addressed the test for determining a child's habitual residence under the Convention, and the standard of review for the habitual residence determination on appeal.
b. The Court held that a child's habitual residence depends on the "totality of the circumstances," which standardizes the U.S. approach across jurisdictions and brings the U.S. approach in line with many other State Parties to the Convention.
c. The Court further held that appellate courts should review lower courts' ruling on the question of habitual residence under the deferential clear error review standard.
7 FAM 1760 through 7 FAM 1790 Appendix D Unassigned