Recent Decision Aims to Clarify International Child Custody Disputes

The right of a noncustodial parent to have a child returned to the country from which he was removed in violation of a custody order is enforceable through the Hague Convention on the Civil Aspects of International Child Abduction, the U.S. Supreme Court ruled recently in Abbott v. Abbott. The court's decision overturned two circuit court decisions that held that ne exeat clauses preventing a custodial parent from removing a child from the country without the consent of the noncustodial parent represent a custodial right and not merely a right of access. The distinction is significant for enforceability under the international Hague Convention.

The Abbott decision is sure to be welcomed by noncustodial parents whose children have been removed from U.S. jurisdiction by custodial parents in violation of custody orders. Often in such cases, the custodial parent maintains foreign citizenship and relies on receiving preferential treatment in home country courts against a noncitizen parent.

Even when a parent has joint or sole custody, he or she can't enforce a custody order without first finding the missing child. Once the child is located, local courts may be used to prevent or delay a return of the child to the U.S. The longer the case drags on and the further entrenched in local culture and language the child becomes, the heavier the burden becomes for the parent seeking the child's return.

Adam Thomas' experience is typical of how international child kidnapping cases occur. Thomas shared custody of his daughter, Sydney, with her mother, Bianca Ormsby. On March 9, Ormsby picked up Sydney from Thomas. On March 12, when Thomas arrived for his turn to take Sydney, Ormsby's house was dark. Thomas tried to reach her by phone and email, finally hearing from her a month later. Ormsby, a New Zealand citizen, told him she had decided it was best for her and the baby to return to her native country.

Ormsby is subject to criminal charges in the United States for removing Sydney. Thomas, meanwhile, awaits Sydney's return. New Zealand is a party to the Hague Convention, so the baby should be returned to the United States unless Ormsby is able to make a showing under one of the Article 13 exceptions.