In Abbott v Abbott, --- F.3d ----, 2008 WL 4210541 (5th Cir. 2008) the Fifth Circuit held that ne exeat rights do not constitute "rights of custody" within the meaning of the Hague Convention and affirmed the district court's judgment. Petitioner Timothy Abbott was a British citizen, and Respondent Jacquelyn Abbott was a U.S. citizen. The parties married in November 1992 in England, and their son was born in Hawaii in June 1995. Beginning in 2002, the parties and their son resided in La Serena, Chile. After the parties separated in March 2003, they litigated in the Chilean family courts. The mother was awarded custody, and the father was granted visitation rights. The Chilean courts entered four separate orders. The first, entered in January 2004, provided visitation rights to the father. The second, entered in November 2004, required the parties and their son to undergo private therapy, denied the father's request for custody rights, and granted all custodial rights to the mother. The third, entered in February 2005, expanded the father's visitation rights, including visitation for an entire month of summer vacation. On January 13, 2004, at the mother's request, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent (the "ne exeat order"). In August 2005, the mother removed the child from Chile without the father's consent. She and the child departed without notice in the midst of disputes over visitation and other issues. Motions were pending before the Chilean family court at the time of the child's removal, but the Chilean court had previously awarded all custody rights to the mother in its November 2004 order. The father located his son in Texas and then filed suit in the District Court and sought an order requiring that the child be returned to Chile pursuant to the Hague Convention. The district court held a bench trial in February 2007. The mother conceded that she had violated both the Chilean family court's ne exeat order and a Chilean statute that required the father's authorization before the child could leave Chile. The father argued that the ne exeat order and the statutory ne exeat provision gave him "rights of custody" within the meaning of the Hague Convention. The father also argued that Article 229 of the Chilean Civil Code afforded him certain "residual custodial rights," but the district court concluded that the statute clearly provides only for "access" or visitation rights (the right to "maintain a direct and regular relationship with the child"), not custody rights. See Villegas Duran v. Arribada Beaumont, No. 06-5614, 2008 U.S.App. LEXIS 15299, at *13-14 (2d Cir. July 18, 2008, amended July 22, 2008) (holding in Hague Convention case that Article 229 of the Chilean Civil Code addresses only visitation rights, not custody rights). The district court denied return of the child, finding that the child's removal from Chile did not constitute a breach of the father's "rights of custody" as defined by the Hague Convention. The Fifth Circuit pointed out that a Chilean statute concerning the departure of minors from Chile provides that if a non-custodial parent has visitation rights, that parent's authorization is required before the custodial parent can take the child out of the country (although a custodial parent may apply to the court for permission to remove the child for an authorized period of time). The Chilean statute concerning the departure of minors from Chile, according to the father's expert witness, provides in relevant part:“If the judge has entrusted custody to one of the parents or to a third party, the legitimate child may not leave except under authorization of the person to whom he has been entrusted. Once the court has decreed the obligation to allow visits pursuant to thepreceding article, authorization of the father or mother who has the right to visit a child shall also be required .... If the authorization cannot be granted or is denied without good reason by one of those who must give it by virtue of this article, it may be grantedby the Family Court Judge in the location where the minor resides. MINORS LAW 16,618 OF CHILE art. 49. The mother conceded that she violated the ne exeat order by unilaterally removing the parties' son. The Fifth Circuit held that the district court correctly found that the Chilean statute "does not confer rights distinguishable in any significant way from those conferred by the Chilean court's ne exeat order." Abbott v. Abbott, 495 F.Supp.2d 635, 638 n. 3 (W.D.Tex.2007). Therefore, in its analysis, any rights accruing to the father under the ne exeat order was treated the same as rights accruing under the statutory ne exeat provision. The Fifth Circuit noted that three federal appellate courts have determined that ne exeat orders and statutory ne exeat provisions do not create "rights of custody" under the Hague Convention. See Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir.2002); Croll v. Croll, 229 F.3d 133, 138-39 (2d Cir.2000). One federal appellate court, however, has reached the opposite conclusion. See Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir.2004). The issue was one of first impression in the Fifth Circuit. It noted that in Croll, the custodial mother removed the parties' child from Hong Kong without the consent of the child's father in violation of a Hong Kong court's custody order. The Second Circuit considered whether a ne exeat clause in the custody order coupled with rights of access (visitation) conferred "rights of custody" within the meaning of the Hague Convention. Recognizing that it was the first federal appellate court to consider the issue, the Second Circuit engaged in an exhaustive analysis of the purpose and design of the Hague Convention, its wording, the intent of its drafters and the case law of other signatory states. The Croll court considered the ordinary meaning of the phrase "rights of custody" and determined that the Hague Convention referred to a bundle of rights relating to custody, such that possessing only one of the rights did not amount to having "rights of custody." The Fifth Circuit found that the Second Circuit's analysis was consistent with the emphasis the Hague Convention places on "the right to determine the child's place of residence" because a ne exeat veto right is only a partial power--in other words, only one of a bundle of residence-determining rights. The Croll court stated that this "single veto power, even if leveraged, falls short of conferring a joint right to determine the child's residence, particularly since an earlier clause in the custody order awards 'custody[,] care and control' solely to the mother." The mother had the right to choose where the child would live within Hong Kong, and the father had no control over her choice. Furthermore, although the father could refuse to consent to the child's removal from Hong Kong, he could not require that the child live in another country; thus, he had only a veto right over the child's removal from Hong Kong rather than an affirmative right to determine the child's residence. The Fourth and Ninth Circuits have followed Croll, holding that ne exeat rights are not "rights of custody" under the Hague Convention. See Fawcett, 326 F.3d at 500; Gonzalez, 311 F.3d at 948. The Fifth Circuit also noted that the Eleventh Circuit had explicitly rejected Croll. Furnes, 362 F.3d at 719. The Furnes court determined that the custodial mother (who could determine where the child lived within Norway) and the non-custodial father (who could veto the child's removal from Norway) "each possessed elements of [the] place-of-residence right, which they exercised jointly." The Eleventh Circuit then held that a ne exeat right alone is sufficient to constitute a custody right: "We conclude that this ne exeat right grants [the father] a right of custody under the Hague Convention." The court explained, [E]ven if [the father's] ne exeat right is (we believe incorrectly) viewed as a mere "veto right" or limitation on [the mother's] right to determine [the child's] place of residence, we nevertheless believe that the ne exeat right under Norwegian law is a right of custody under the Convention .... [E]ven assuming arguendo that [the father] does not have the right to determine [the child's] place of residence, he has at the very least a veto right relating to the determination of her place of residence--that is, a right "relating to the care of the person" of [the child]. As such, the ne exeat right ... provides [the father] with a right of custody over [the child] as defined by the Hague Convention. The District Court found that although Ms. Abbott's removal of [the parties' son] violated and frustrated the Chilean court's order, so too would the removal of a child from a country in which any parent with rights of access resided. Mr. Abbott's right of access, however enhanced and protected by the ne exeat order, was simply not sufficient to create rights of custody that warrant the greater protection intended under the Hague Convention. This Court in no way condoned Ms. Abbott's action .... [The child's] residence in the United States obviously interferes with Mr. Abbott's visitation rights, as established by the Chilean court. However, the Hague Convention explicitly creates a different set of remedies for those parents whose rights of access are frustrated by the custodial parent's removal of a child .... Id. at 640-41 (citation and footnotes omitted). The district court denied return of the child, finding that the father did not establish by a preponderance of the evidence that his son's removal constituted a breach of "rights of custody" as defined by the Hague Convention. The Fifth Circuit noted that the ne exeat order prohibited either parent from removing the child from Chile without the consent of the other. The ne exeat order thus gave the father a veto right over his son's departure from Chile, but it did not give him any rights to determine where in Chile his child would live. Furthermore, the Chilean family court, in its second order, expressly denied the father's request for custody rights and awarded all custody rights to the mother. The Fifth Circuit found persuasive Croll's reasoning that the Hague Convention clearly distinguishes between "rights of custody" and "rights of access" and that ordering the return of a child in the absence of "rights of custody" in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. It held that ne exeat rights, even when coupled with "rights of access," do not constitute "rights of custody" within the meaning of the Hague Convention.
