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No. 08-645

In the Supreme Court of the United States

TIMOTHY MARK CAMERON ABBOTT, PETITIONER

v.

JACQUELYN VAYE ABBOTT

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELENA KAGAN
Solicitor General
Counsel of Record
EDWIN S. KNEEDLER
Deputy Solicitor General
TONY WEST
Assistant Attorney General
GINGER D. ANDERS
Assistant to the Solicitor
General
MICHAEL JAY SINGER
HOWARD S. SCHER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

JAMES H. THESSIN
Deputy Legal Adviser
KEITH LOKEN
Assistant Legal Adviser for
Private International Law
MARY CATHERINE MALIN
Assistant Legal Adviser for
Consular Affairs
MARY HELEN CARLSON
JAMES L. BISCHOFF
Attorney-Advisers
Department of State
Washington, D.C.

QUESTION PRESENTED

Whether a ne exeat order, which prohibits either par ent from removing a child from the country without the other parent's consent, confers a "right of custody" with in the meaning of the Hague Convention on the Civil As pects of International Child Abduction, thus allowing a parent to seek to have a child who was removed to ano ther country in violation of the ne exeat order returned to his or her country of habitual residence.

In the Supreme Court of the United States

No. 08-645

TIMOTHY MARK CAMERON ABBOTT, PETITIONER

v.

JACQUELYN VAYE ABBOTT

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

 

INTEREST OF THE UNITED STATES

This brief is filed in response to this Court's invita tion to the Solicitor General to express the views of the United States. In the view of the United States, the pe tition for a writ of certiorari should be granted.

STATEMENT

1. The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or the Convention) was adopted in 1980 to address the growing problem of international child abduction by per sons involved in child custody disputes. Hague Interna tional Child Abduction Convention; Text and Legal Analysis (Convention Text and Legal Analysis), 51 Fed. Reg. 10,498 (1986); see Convention on International Childhood Abduction, done Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49.1 To facilitate the international cooperation that is necessary to deter and remedy such abductions, the Convention establishes uniform legal standards and procedures to be employed by States par ties when a child is abducted from one country to an other. See 42 U.S.C. 11601(a); see also Convention, in troductory decls., Art. 1. In particular, the Convention provides that children abducted in violation of a parent's custody rights should be promptly returned to their country of habitual residence. See id. Art. 1. The re turn remedy is designed to "protect children interna tionally from the harmful effects of their wrongful re moval or retention" by quickly restoring them to their established family and social networks. See id. intro ductory decls.; 51 Fed. Reg. at 10,504. It also prevents the abducting parent from gaining any legal advantage from removing the child to a different jurisdiction, and ensures that decisions relating to the child's custody are made by the courts of his or her country of habitual resi dence. See id. at 10,498.

The Convention applies to any child under the age of 16 who is "wrongfully removed" from one contracting State to another. Convention Arts. 1(a), 4. Removal is "wrongful[]" if it is (1) "in breach of rights of custody attributed to a person, * * * either jointly or alone, under the law of the State in which the child was habitu ally resident," id. Art. 3(a); and (2) "at the time of re moval or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention," id. Art. 3(b). "Rights of custody," for purposes of the Convention, "shall in clude rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Id. Art. 5(a).

Upon finding that a child's removal was wrongful -that is, that it violated the custody rights of the left- behind parent-authorities in the State where the child has been brought must, subject to certain defenses, "or der the return of the child forthwith."2 Convention Art. 12. That remedy reflects the Convention's premises that custody determinations should be made by the courts in the child's country of habitual residence, and that the abducting parent should gain no benefit from attempting unilaterally to change the forum. Elisa Perez-Vera, Re port of the Special Comm'n: Hague Conference on Pri vate International Law, in 3 Actes et Documents de la Quatorzième Session (Child Abduction) 172, paras. 16, 19, at 177 (Permanent Bureau trans. 1982) (Explanatory Report).3 Accordingly, a court considering a petition for the return of the child is not to make any determination of the parties' custody rights, and any decision made concerning return under the Convention "shall not be taken to be a determination on the merits of any custody issue." Convention Arts. 16-17, 19.

The United States participated in the negotiations concerning the Convention's terms, and the Convention entered into force for the United States in 1988. Con vention on International Child Abduction, supra. In order to implement the Convention, Congress enacted the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., which establishes pro cedures for requesting return of a child abducted to the United States.4 In so doing, Congress found that "con certed cooperation pursuant to an international agree ment" and "uniform international interpretation of the Convention" were necessary to combat international child abduction. 42 U.S.C. 11601(a)(3) and (b)(3)(B).

ICARA authorizes "[a]ny person" seeking return of a child pursuant to the Convention to file a petition for relief in state or federal court. 42 U.S.C. 11603(b). The court "shall decide the case in accordance with the Con vention." 42 U.S.C. 11603(d). A child determined to have been wrongfully removed is to be "promptly re turned," unless the party opposing return establishes the applicability of one of the Convention's "narrow ex ceptions." 42 U.S.C. 11601(a)(4), 11603(e)(2). Those exceptions-which include situations in which the child would face a "grave risk" of harm upon his or her re turn, Convention Art. 13(b), the child is old enough to object, id. Art. 13, or return would violate "fundamental principles" of the requested State, id. Art. 20-may be raised as affirmative defenses to the return of the child.5 42 U.S.C. 11603(e)(2).

2. Petitioner is a British subject who married re spondent, a United States citizen, in England in 1992. Pet. App. 1a. In 1995, while living in Hawaii, the couple had a child, A.J.A. Id. at 1a, 16a. Eventually, petitioner and his family moved to Chile. Id. at 1a. In March 2003, petitioner and respondent separated, and they subse quently litigated various custody and visitation issues in the Chilean family courts. Id. at 1a-2a. As relevant here, the courts granted respondent daily care and con trol of A.J.A. and accorded petitioner "direct and regu lar" visitation rights, including a full month of summer vacation. Id. at 2a, 16a-17a. The courts also entered, at respondent's request, a ne exeat order that prohibited either parent from removing A.J.A. from Chile without the other's consent. Id. at 17a.6

In August 2005, respondent removed A.J.A. from Chile without petitioner's consent. At the time, petition er was seeking to expand his rights with respect to A.J.A., and several motions were pending before the Chilean family court. Subsequently, petitioner hired a private investigator and located his son in Texas. Pet. App. 2a.

3. Petitioner commenced this action in the District Court for the Western District of Texas in May 2006, seeking to have A.J.A. returned to Chile pursuant to the Convention and ICARA. Pet. App. 2a-3a, 17a. The dis trict court denied the request. Id. at 15a. The court acknowledged that respondent's removal of A.J.A. with out petitioner's consent "violated and frustrated the Chilean court's order." Id. at 19a-20a, 24a. The court concluded, however, that the removal was not "wrong ful" within the meaning of the Hague Convention be cause petitioner's ne exeat right did not constitute a right of custody under the Convention. Id. at 26a.

The court of appeals affirmed. Pet. App. 1a-14a. The court observed that the courts of appeals are divided on the question whether a ne exeat right constitutes a "right[] of custody" for purposes of the Convention. Id. at 6a-7a. As the court noted, three courts have con cluded that a ne exeat right is not a custody right. See Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.) (hold ing that a ne exeat right was simply a "limitation on the custodial parent's right to expatriate his child" and therefore not a right of custody) (citation omitted), cert. denied, 540 U.S. 1068 (2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948-949 (9th Cir. 2002) (holding that a ne exeat right was not custodial because the parent holding it could not "direct with any specificity where the chil dren" would live); Croll v. Croll, 229 F.3d 133, 138-139 (2d Cir. 2000) ("custody is something other and more than a negative right or veto"), cert. denied, 534 U.S. 949 (2001). The Eleventh Circuit, the court below noted, has "reached the opposite conclusion." Pet. App. 6a-7a (footnote omitted); see Furnes v. Reeves, 362 F.3d 702, 720 (because of ne exeat right, parents "share a divided right to determine [the child's] place of residence"), cert. denied, 543 U.S. 978 (2004). The court of appeals also stated that "foreign courts disagree regarding whether ne exeat rights are 'rights of custody' within the mean ing of the Hague Convention." Pet. App. 11a.

Adopting the Second Circuit's analysis in Croll, the Fifth Circuit held in this case that petitioner was not entitled to have A.J.A. returned to Chile, because the ne exeat right was only a "partial power" that gave peti tioner "a veto" over A.J.A.'s country of residence, but not a "righ[t] to determine where in Chile his child would live." Pet. App. 7a-8a, 13a. The court also empha sized the Chilean courts' grant of physical custody to respondent, and determined that petitioner possessed only rights of access, not rights of custody. Id. at 13a- 14a. Under the Convention, the court concluded, peti tioner's access rights could not provide a basis for order ing the return of the child to Chile. Ibid.

DISCUSSION

The court of appeals incorrectly held that petitioner's ne exeat right does not constitute a "right[] of custody" within the meaning of the Hague Convention. Under standing a ne exeat right as a "right[] of custody" best gives effect to the Convention's broad definition of cus tody rights, which expressly includes the "right to deter mine the child's place of residence." Convention Art. 5(a). That result also furthers the Convention's purpose of protecting from interference all of the ways in which parents can be accorded control over decisions affecting a child's care and residence.

Because the court of appeals' decision deepens the disagreement among the circuit courts on the proper characterization of the ne exeat right, and deviates from the view of a majority of courts in States parties that have considered the issue, the petition for a writ of cer tiorari should be granted.

A. The Court Of Appeals Erred In Holding That A Ne Exeat Right Is Not A Right Of Custody

1. a. Under the Convention, a removal is wrongful if it is a breach of "rights of custody attributed to a per son * * * either jointly or alone." Convention Art. 3(a). The Convention defines "rights of custody" expan sively, stating that they "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." See id. Art. 5(a). The definition is purposefully phrased in inclusive, rather than exhaustive, language: the Con vention seeks "to protect all the ways in which custo dy of children can be exercised." Explanatory Report para. 71.7 Consequently, the definition of custody under the Convention is an "autonomous concept," Hague Con ference on Private International Law, Overall Conclu sions of the Special Commission of October 1989 on the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 29 I.L.M. 219, ¶ 9, at 222 (1990),8 and may be broader than any participating country's domestic conception of custody. See C. v. C., [1989] 1 W.L.R. 654, 658 (Eng. C.A.) (Butler-Sloss, L.J.); In re D, [2007] 1 A.C. 619, 635 (H.L.) (U.K.); see also Furnes v. Reeves, 362 F.3d 702, 711 (11th Cir.), cert. denied, 543 U.S. 978 (2004).

The ne exeat right is a "right[] of custody" under Article 5(a) because it is a joint "right to determine the child's place of residence." See Furnes, 362 F.3d at 714- 716, 719-722; see also Croll, 229 F.3d at 144-154 (Soto mayor, J., dissenting). A parent who holds a ne exeat right has the ability to decide whether or not the child may be taken outside of the country of habitual resi dence, and thus the right to share in the decision as to where the child will reside. See Furnes, 362 F.3d at 715. Inherent in that right, moreover, is the ability to take part in more specific decisions about the child's resi dence. In agreeing to relocation outside the country, a parent with a ne exeat right may impose conditions on the relocation, thereby having a say in which new coun try, or community within that country, a child will re side. See id. at 719-721; C., 1 W.L.R. at 663 (Neil, L.J.) ("[T]his right to give or withhold consent[,] * * * cou pled with the implicit right to impose conditions, is a right to determine the child's place of residence.").

In according a parent effective control over the coun try in which the child will grow up, a ne exeat order also gives the parent a substantial say in the child's care and development. The choice of country will determine ev erything from the child's primary cultural identity-the languages she speaks, the games she plays-to the char acter of the schools that she attends and the opportuni ties that will be open to her as an adult. The ne exeat right thus confers on the parent significant, if indirect, "decision-making authority over the child's care." Furnes, 362 F.3d at 716 (By holding a ne exeat right, "Plaintiff Furnes effectively can decide that [the child] will be Norwegian.").

Protection of the ne exeat right as a right of custody also effectuates the parties' intent in crafting the Con vention's wrongful removal provisions. A ne exeat right acts as a limitation on the custody rights of the parent with physical custody, permitting that parent to exercise her custody rights only in the home country, and requir ing her to obtain the approval of the ne exeat holder be fore relocating to another. See Croll, 229 F.3d at 148 (Sotomayor, J., dissenting); Sonderup v. Tondelli, 2000(1) Constitutional Court of South Africa 1171, at para. 25 (effect of the ne exeat order was that "the mother was entitled to exercise her rights of custody * * * only in British Columbia"). A violation of a ne exeat order is thus a wrongful attempt to expand one's custody rights at the expense of the other parent's joint decision-making authority-just the kind of harm that the Convention aims to prevent. See Explanatory Re port paras. 13, 15, 71; Croll, 229 F.3d at 146-147 (Soto mayor, J., dissenting); see El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) (El Al) ("[I]t is our responsibility to give the specific words of the treaty a meaning consistent with the shared expecta tions of the contracting parties.") (brackets in original) (quoting Air France v. Saks, 470 U.S. 392, 399 (1985)).

Consistent with the foregoing principles, the Depart ment of State, whose Office of Children's Issues serves as the Central Authority for the United States under the Convention, considers the Convention to include ne exeat rights among the protected "rights of custody."9

b. The court of appeals' holding that a ne exeat right is not a custody right was based on several incorrect conclusions regarding the Convention's text and scope. First, the court adopted Croll's reasoning that the Con vention protects only those persons who possess the full "bundle of rights relating to custody, such that possess ing only one of the rights [does] not amount to having 'rights of custody.'" Pet. App. 7a-8a (quoting Croll, 229 F.3d at 138-139). But that conclusion fails to acknowl edge the ways in which the Convention contemplates that the "bundle" of custody rights may be divided. See Furnes, 362 F.3d at 714. The Convention provides that custody rights may be held jointly, Convention Art. 3(a), so that removal of a child by one holder of joint custody is wrongful even though the other joint holder by defini tion does not possess unilateral custody rights. Explan atory Report para. 71. In addition, the Explanatory Report indicates that a parent possessing only some, but not all, custody rights may seek a child's return. Id. para. 78 (parent may seek return even if the child pos sesses the right to determine his own residence, because "the right to decide a child's place of residence is only one possible element of the right to custody"). The Con vention thus does not distinguish between parents who possess full, unilateral custody over a child, and those who possess only more particular custody rights. Ra ther, the Convention is intended to encompass all of the ways in which the domestic law of the various parties may create-and divide-rights of custody. Id. para. 67; see Furnes, 362 F.3d at 716 & n.12.

Second, the court of appeals characterized the ne exeat right as a mere "veto right," Pet. App. 13a, rather than an affirmative right to "determine" residence. See Croll, 229 F.3d at 139. But given the Convention's rec ognition of joint custodial arrangements, this reasoning is but a mistaken attempt to pry apart two sides of one coin. To be sure, a ne exeat right can be framed as a veto right that prevents the other parent from removing a child from the country. But a ne exeat right can be understood no less accurately as an affirmative right to participate with the other parent in the determination of the country in which the child should reside. The "veto" implies and effectuates a joint right of control, and as just noted, the Convention contemplates that joint rights may count as custodial.

Third, the court viewed the ne exeat right as confer ring insufficient control over "residence" to qualify as a right of custody because it did not encompass the right to determine where the child would live within the country. Pet. App. 8a, 12a-13a. But the Convention pro vides no basis for construing the "right to determine the child's place of residence" so narrowly. The phrase "place of residence" can connote both a specific location within a country and the very country itself. The Con vention's essential focus is on the country as a place of residence, given that its entire purpose is to prevent the wrongful removal of children across international bor ders. Convention Art. 1(a); see Explanatory Report paras. 15, 56. And, as noted above, the choice of country in which a child will reside is likely to have a significant impact on the child's life and care. Therefore, "the only logical construction of the term 'place of residence' in the Convention" is that it "necessarily encompass[es] decisions regarding whether [a child] may live outside of " the home country. Furnes, 362 F.3d at 715; see C., 1 W.L.R. at 658.

Finally, the court relied on what it regarded as the Convention's sharp distinction between "rights of cus tody" and "rights of access." See Pet. App. 14a; id. at 12a. This distinction indeed exists, but the court erred in assimilating the ne exeat right to a right of access. See Croll, 229 F.3d at 145 (Sotomayor, J., dissenting). Unlike a ne exeat holder, a parent with access rights has only visitation rights, 42 U.S.C. 11602(7); the parent does not have the right to participate in decisions con cerning the child's country of residence. This difference is fundamental under the terms of the Convention. It explains why the ne exeat holder, but not the parent with simple access rights, can invoke the Convention's remedy of return.10

2. The court of appeals' decision also deviates from the postratification understanding of a majority of States parties to the Convention. In interpreting the language of a treaty, "the opinions of our sister signato ries [are] entitled to considerable weight." Saks, 470 U.S. at 404 (citation omitted); El Al, 525 U.S. at 175-176 & n.16 (relying on foreign intermediate and highest court decisions). That is particularly so here, given the Convention's and Congress's emphasis on the impor tance of uniformity in interpreting the Convention.

Courts in the United Kingdom, Australia, South Af rica, New Zealand, and Israel have adopted the view that a ne exeat right creates a right of custody. See, e.g., C., 1 W.L.R. at 658; A.J. v. F.J., [2005] ScotCS CSIH_36; Secretary for Justice v. Abrahams, ex parte Brown, [2001] FP 069/134/00 (Fam. Ct.) (Taupo, N.Z.) (parent with guardianship rights under South African law had "right to determine children's place of residence" be cause guardianship rights included ne exeat right); In the Marriage of Resina, [1991] FamCA 33, para. 26 (Austl. Fam.); Sonderup v. Tondelli, supra, para. 25 (holding that ne exeat clause in interim custody order constituted custody right); C.A. 5271/92 Foxman v. Foxman [1992] (H.C.) (Isr.).

One court in another signatory nation has held that a ne exeat right does not constitute a right of custody.11 In Ministère Public c. Mme. S., D.S., Tribunal de gran de instance [T.G.I.] [ordinary court of original jurisdic tion] Perigueux, Mar. 17, 1992, D.S. Jur. 1992 (Fr.), the court refused to order return of children to the United Kingdom because it viewed the ne exeat order as a mere limit on the mother's exercise of her custody rights, and also as an impermissible restriction on the mother's right to expatriate under the European Convention for the Protection of Human Rights and Fundamental Free doms. That decision, however, is inconsistent with an earlier French decision, see Ministère Public c. M.B., Cour d'appel [CA] [regional courts of appeal] Aix-en- Provence, Mar. 23, 1989, which held that a ne exeat right is a custody right that triggers the Convention's return remedy.

Mme. S., moreover, has been recognized by the Spe cial Commission of States parties as out of step with the prevailing view of the Convention. The Special Com mission noted that the court's conclusion that a ne exeat right "constituted only a 'modality' attached to the right of custody and not a situation of joint custody, gathered no support." Report of the Second Special Commission Meeting to Review the Operation of the Hague Conven tion on the Civil Aspects of International Child Abduc tion, Question 5 (1993).12 Moreover, the Commission noted, Mme. S.'s holding "had been rejected by the Cour d'appel d'Aix-en-Provence, as well as courts in Austria, Australia, the United Kingdom and the United States of America." Ibid.

Thus, the prevailing view among courts in States parties to have considered the issue is that a ne exeat right constitutes a right of custody. See In re D, supra (surveying case law, and noting that opinion in common- law countries was virtually "united"); Hague Conference on Private International Law, Transfrontier Contact Concerning Children: General Principles and Guide to Good Practice 43 (2008) <http://www.hcch.net/upload/ guidecontact_e.pdf> ("preponderance of the case law" holds that ne exeat is a custody right, and the opposing view "does not command widespread support").

B. There Is Disagreement Among The Circuits As To Whether A Ne Exeat Right Is A Custody Right

This Court's review is warranted to resolve the dis agreement among the courts of appeals regarding whether a ne exeat right is a custody right under the Convention. The court below followed decisions of the Second, Fourth, and Ninth Circuits in holding that ne exeat orders do not confer custody rights. Pet. App. 6a- 7a; see Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.), cert. denied, 540 U.S. 1068 (2003); Gonzalez v. Gu tierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll, 229 F.3d at 138-139. The Eleventh Circuit has reached the oppo site conclusion.13 See Furnes, 362 F.3d at 719.

To be sure, as respondent correctly points out (Br. in Opp. 10-11), the Eleventh Circuit's holding that the peti tioning father possessed custody rights under the Con vention was based not only on his ne exeat right, but also on his rights of "joint parental responsibility" under Norwegian law. Furnes, 362 F.3d at 712-713. Neverthe less, the Furnes court unambiguously concluded, ex pressly "diverg[ing] from" other courts of appeals, id. at 719, that the "ne exeat right under Norwegian law is a right of custody under the Convention," id. at 716. The court therefore found it unnecessary to determine defin itively whether the father's "joint parental responsibil ity" constituted a custody right. See id. at 714, 719. As a result, the court below correctly described Furnes as creating a "[c]ircuit [s]plit," Pet. App. 6a, by holding "that a ne exeat right alone is sufficient to constitute a custody right," id. at 10a (footnote omitted).

C. The Ne Exeat Issue Is An Important Question That Mer its This Court's Review, And This Case Is A Suitable Vehicle

1. The question presented is important because it implicates the United States' ability to fulfill its obliga tions as a party to the Convention. Uniformity in appli cation is key to the Convention's goals of deterring in ternational parental abduction and achieving the prompt return of abducted children. See Convention Art. 1; Ex planatory Report para. 16. In enacting the Convention's implementing legislation, Congress explicitly recognized "the need for uniform international interpretation of the Convention," 42 U.S.C. 11601(b)(3)(B). The court of ap peals' decision and the other decisions following Croll have grafted an unduly narrow concept of custody rights onto the Convention, thereby rendering the United States an outlier among States parties on the ne exeat issue, causing disparities in interpretation that threaten to undermine the efficacy of the Convention, and creat ing an incentive for abducting parents who violate ne exeat orders to bring their children to the United States. As a leader in negotiating the Convention and oversee ing its operation, the United States has a strong interest in avoiding those consequences and in promoting comity in the application of the Convention.

The disagreement among domestic courts-which the court of appeals' decision deepens-also results in inconsistent application of the Convention within the United States. The United States is among the States parties that receive the highest yearly number of appli cations for the return of abducted children. See Hague Conference on Private International Law, A Statistical Analysis of Applications Made in 2003 Under the Hague Convention of 25 October 1980 on the Civil As pects of International Child Abduction 13 (2007). Espe cially because the United States is a primary destination for parents who have abducted their children, the United States Central Authority needs the benefit of a settled and uniform interpretation of the Convention, so that it can perform its functions. See Convention Art. 7; 42 U.S.C. 11606; see also Office of Children's Issues, U.S. Dep't of State, Incoming Cases: Frequently Asked Questions (visited May 27, 2009) <http://travel.state. gov/family/abduction/incoming/incoming_4183.html> (Central Authority offers assistance and various re sources to individuals seeking the return of children abducted to the United States).

In addition, the disagreement among the circuits pro vides abducting parents with the ability to forum shop among United States jurisdictions in order to obtain the most favorable rule. Here, for instance, had respondent brought her son to Florida instead of Texas, he would have been subject to return pursuant to Furnes. This disuniformity within the United States undermines the Convention's purpose of preventing abducting parents from obtaining any benefit by choosing a favorable fo rum to which to take the child. See Explanatory Report para. 71.

2. This case presents a suitable vehicle for resolving the question whether a ne exeat right is a custody right. Although respondent argues that the ne exeat right un der Chilean law is not absolute because a Chilean court may override an unreasonable exercise of the right, both courts below construed the Chilean statute and the court's ne exeat order as conferring on petitioner the "authority" to prevent removal of his child from the country. Pet. App. 13a; id. at 19a-20a, 22a-23a; Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147-148 (2d Cir. 2008) (characterizing ne exeat right conferred by Chilean statutory law as "the right to determine whe ther the child will leave the country"), petition for cert. pending, No. 08-775 (filed Dec. 12, 2008). And even if a court does have the power to override one parent's re fusal to consent to the child's removal, the ne exeat right remains a right of custody. In these circumstances, the ne exeat right at the least forces the parent who wishes to relocate to petition the court for permission, rather than to do so unilaterally. The ne exeat right thus con tinues to give the holder a meaningful ability to partici pate in the decision whether any relocation should occur. That the ne exeat right may not be permanent and un conditional-either because a court can override its ex ercise or because a court can modify the order granting it in the first place-is not determinative for purposes of the Convention. A right of custody, whether a ne exeat right or any other kind, need not be unlimited or unal terable to qualify for the protection that the Convention offers.

Respondent also points out (Br. in Opp. 22-25) that the district court "never reached the question of whe ther Petitioner was actively 'exercising' any 'rights of custody' he may have had at the time of removal." That is true, but not surprising. The court never reached that question because it is most logically asked after a court determines that the petitioning parent has custody rights to exercise. In the event that this Court deter mines that petitioner's ne exeat right is a custody right, the question whether petitioner exercised that right could be addressed on remand. In any event, the Con vention permits return when the custody rights "would have been so exercised but for the removal," Convention Art. 3(b), and the evidence here strongly suggests that petitioner would have exercised his ne exeat right but for the wrongful removal. See Furnes, 362 F.3d at 724. It was respondent's failure to comply with the ne exeat clause that actually prevented petitioner from exercising his right, either by consenting to the relocation (with or without conditions) or by withholding consent. Id. at 722-723.

Finally, respondent asserts (Br. in Opp. 22), in one sentence, that the possibility of a res judicata defense makes this case an unsuitable vehicle. The court below did not address that argument. If a res judicata issue exists and was properly preserved, it would remain open on remand from this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General
TONY WEST
Assistant Attorney General
GINGER D. ANDERS
Assistant to the Solicitor
General
MICHAEL JAY SINGER
HOWARD S. SCHER
Attorneys

JAMES H. THESSIN
Deputy Legal Adviser
KEITH LOKEN
Assistant Legal Adviser for
Private International Law
MARY CATHERINE MALIN
Assistant Legal Adviser for
Consular Affairs
MARY HELEN CARLSON
JAMES L. BISCHOFF
Attorney-Advisers
Department of State

MAY 2009

 

1 The English-language text of the Convention is reprinted at 51 Fed. Reg. at 10,498-10,502, together with an analysis prepared by the Department of State and submitted to the Senate Committee on For eign Relations in connection with the Senate's consideration of the Con vention. See id. at 10,494, 10,503-10,516.

2 In contrast, the Convention does not provide the return remedy for violations of "rights of access," which "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Convention Art. 5(b). Rather, an individual whose access rights have been violated may petition to "secur[e] the effective ex- ercise of" her rights. Id. Art. 21.

3 The Explanatory Report is recognized "as the official history and commentary on the Convention." Convention Text and Legal Analysis, 51 Fed. Reg. at 10,503. Courts have recognized the Explanatory Re port as "an authoritative source for interpreting the Convention's pro visions." See, e.g., Croll v. Croll, 229 F.3d 133, 137 n.3 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001).

4 As required by Article 6 of the Convention, ICARA also provides for a "Central Authority for the United States," to be designated by the President. 42 U.S.C. 11606(a). Under the Convention, each Central Authority is charged with "promot[ing] co-operation amongst the competent authorities in their respective States" and performing var ious duties, including facilitating voluntary returns and providing legal and investigative resources. Convention Art. 7. The Office of Chil dren's Issues in the Bureau of Consular Affairs in the State Depart ment serves as the Central Authority for the United States. See 22 C.F.R. 94.2.

5 Domestic custody and relocation law is animated by the same prin ciples as the Convention, and contemplates similar results. The Uni form Child-Custody Jurisdiction and Enforcement Act (UCCJEA), 9 U.L.A. §§ 201- 202 (1999), provides that a court that makes an initial custody determination maintains exclusive and continuing jurisdiction over that determination. The UCCJEA also attempts to deter inter- state child abduction by providing that courts generally must recognize and enforce, by any available remedy, existing custody and visitation decrees entered in other jurisdictions, id. § 303.

6 Petitioner also held a ne exeat right under a Chilean statute that requires authorization from a parent having visitation rights before the other parent may take a child out of Chile. See Pet. 4 (citing Minor's Law 16,618 art. 49 (Chile)); Pet. App. 61a; see also Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147-148 (2d Cir. 2008) (characteriz ing Minor's Law 16,618 art. 49 as conferring a ne exeat right), petition for cert. pending, No. 08-775 (filed Dec. 12, 2008).

7 Because the Explanatory Report is the "official history" of the Con vention and "a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it," 51 Fed. Reg. at 10,503, it is proper to look to the Explanatory Report to illum inate the meaning of the Convention's text. See Air France v. Saks, 470 U.S. 392, 400 (1985).

8 The multilateral Special Commission to Review the Operation of the Hague Convention (Special Commission) is organized by the Perm anent Bureau of the Hague Conference on Private International Law. It serves as a forum for the States parties to meet and review the operation of the Convention. The Special Commission's reports are is sued after each meeting, and express the consensus views of the par ticipating States parties. The United States has participated in each Special Commission meeting since the Commission's inception.

9 Although the State Department has not previously memorialized its interpretation, this position represents the Department's "consid ered judgment on the matter." Auer v. Robbins, 519 U.S. 452, 462 (1997); see note 12, infra.

10 The Croll court also denied return of the child in part because it assumed that if return were ordered, the child would be returned to a parent "whose sole right-to visit or veto-imposes no duty to give care." 229 F.3d at 140. The return contemplated by the Convention, however, is a return to the child's country of habitual residence-not a return to a particular person. An abducting parent who has had phys ical custody is free to return with the child to the country of habitual residence, or to petition the courts of that country for an adjustment of custody rights. See Furnes, 362 F.3d at 717.

11 In addition, the Supreme Court of Canada has twice stated, in dicta, that a ne exeat right may not be a right of custody. See Thomson v. Thomson, [1994] 119 D.L.R. (4th) 253; D.S. v. V.W., [1996] 134 D.L.R. (4th) 481. Neither case had before it a controversy involving a parent who violated a ne exeat order after a final custody order had issued. See In re D, supra (characterizing statements of Supreme Court of Canada as dicta). In Thomson, the court ordered the return of a child based on violation of a ne exeat clause in an interim custody order, but suggested that a final ne exeat order would "raise[] quite different issues" because such an order is "usually intended" to protect access rights. In D.S., the petitioning parent had no ne exeat right, but asserted that a similar restriction was implicit in a court order. The court held that a return remedy was not available, referring to Thomson's statement that violations of removal restrictions concern only access rights, not custody rights.

12 The Department of State has informed this Office that its represen tatives at the Special Commission meeting were in agreement that a ne exeat right should be considered a custody right.

13 The state courts to consider the issue have agreed with the Elev enth Circuit that a ne exeat right is a right of custody under the Con vention. See Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 848-849 (Ky. Ct. App. 1999), cert. denied, 531 U.S. 811 (2000); D'Assignies v. Escalante, No. BD 051876 (Cal. Super. Ct. Dec. 9, 1991) <http://www.

hcch.net/incadat/fullcase/0198.htm>.