Abbott v. Abbott , 130 S. Ct. 1983 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ABBOTT v. ABBOTT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 08–645. Argued January 12, 2010—Decided May 17, 2010
After the Abbotts, a married couple, moved to Chile and separated, the
Chilean courts granted respondent wife daily care and control of their
minor son, A. J. A., while awarding petitioner husband visitation
rights. Mr. Abbott also had a ne exeat right to consent before Ms. Ab
bott could take A. J. A. out of the country under Chile Minors Law
16,618 (Minors Law 16,618), art. 49. When Ms. Abbott brought
A. J. A. to Texas without permission from Mr. Abbott or the Chilean
family court, Mr. Abbott filed this suit in the Federal District Court,
seeking an order requiring his son’s return to Chile under the Hague
Convention on the Civil Aspects of International Child Abduction
(Convention) and the implementing statute, the International Child
Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq. Among
its provisions, the Convention seeks “to secure the prompt return of
children wrongfully removed or retained in any Contracting State,”
Art. 1; provides that such “removal or retention . . . is to be consid
ered wrongful where” “it is in breach of rights of custody attributed to
a person . . . under the law of the State in which the child was [there
tofore] habitually resident,” Art. 3(a), and where “those rights [had
been] actually exercised . . . or would have been so exercised but for
the removal or retention,” Art. 3(b); and defines “rights of custody” to
“include . . . the right to determine the child’s place of residence,” Art.
5(a). The District Court denied relief, holding that the father’s ne
exeat right did not constitute a “righ[t] of custody” under the Conven
tion and, thus, that the return remedy was not authorized. The Fifth
Circuit affirmed.
Held: A parent has a right of custody under the Convention by reason of
that parent’s ne exeat right. Pp. 4–17.
(a) The Convention applies because A. J. A. is under 16; he was a
2 ABBOTT v. ABBOTT
Syllabus
habitual resident of Chile; and both Chile and the United States are
contracting states. The ICARA instructs the state or federal court in
which a petition alleging international child abduction has been filed
to “decide the case in accordance with the Convention.” §§11603(b),
(d). P. 5.
(b) That A. J. A. was wrongfully removed from Chile in violation of
a “righ[t] of custody” is shown by the Convention’s text, by the U. S.
State Department’s views, by contracting states’ court decisions, and
by the Convention’s purposes. Pp. 5–18.
(1) Chilean law determines the content of Mr. Abbott’s right,
while the Convention’s text and structure resolve whether that right
is a “righ[t] of custody.” Minors Law 16,618, art. 49, provides that
“[o]nce the court has decreed” that one of the parents has visitation
rights, that parent’s “authorization” generally “shall also be required”
before the child may be taken out of the country. Because Mr. Abbott
has direct and regular visitation rights, it follows that he has a
ne exeat right under article 49. The Convention recognizes that cus
tody rights can be decreed jointly or alone, see Art. 3(a), and Mr. Ab
bott’s ne exeat right is best classified as a “joint right of custody,”
which the Convention defines to “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,” Art. 5(a). Mr. Abbott’s right to decide
A. J. A.’s country of residence allows him to “determine the child’s
place of residence,” especially given the Convention’s purpose to pre
vent wrongful removal across international borders. It also gives him
“rights relating to the care of the person of the child,” in that choos
ing A. J. A.’s residence country can determine the shape of his early
and adolescent years and his language, identity, and culture and tra
ditions. That a ne exeat right does not fit within traditional physical
custody notions is beside the point because the Convention’s defini
tion of “rights of custody” controls. This uniform, text-based ap
proach ensures international consistency in interpreting the Conven
tion, foreclosing courts from relying on local usage to undermine
recognition of custodial arrangements in other countries and under
other legal traditions. In any case, this country has adopted modern
conceptions of custody e.g., joint legal custody, that accord with the
Convention’s broad definition. Ms. Abbott mistakenly claims that a
ne exeat right cannot qualify as a right of custody because the Con
vention requires that any such right be capable of “exercis[e].” When
one parent removes a child without seeking the ne exeat holder’s con
sent, it is an instance where the right would have been “exercised but
for the removal or retention,” Art. 3(b). The Fifth Circuit’s conclusion
that a breach of a ne exeat right does not give rise to a return remedy
would render the Convention meaningless in many cases where it is
Cite as: 560 U. S. ____ (2010) 3
Syllabus
most needed. Any suggestion that a ne exeat right is a right of access
is atexual, as a ne exeat right is not even arguably a “right to take a
child for a limited period of time.” Art. 5(b). Ms. Abbott’s argument
that the ne exeat order in this case cannot create a right of custody is
not dispositive because Mr. Abbott asserts rights under Minors Law
16,618, which do not derive from the order. Pp. 6–11.
(2) This Court’s conclusion is strongly supported and informed by
the longstanding view of the State Department’s Office of Children’s
Issues, this country’s Convention enforcement entity, that ne exeat
rights are rights of custody. The Court owes deference to the Execu
tive Branch’s treaty interpretations. See Sumitomo Shoji America,
Inc. v. Avagliano, 457 U. S. 176, 185. There is no reason to doubt this
well-established canon here. The Executive, when dealing with deli
cate foreign relations matters like international child abductions,
possesses a great store of information on practical realities such as
the reactions from treaty partners to a particular treaty interpreta
tion and the impact that interpretation may have on the State De
partment’s ability to reclaim children abducted from this country.
Pp. 11–12.
(3) The Court’s view is also substantially informed by the views
of sister contracting states on the issue, see El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U. S. 155, 176, particularly because the
ICARA directs that “uniform international interpretation” of the
Convention is part of its framework, see §11601(b)(3)(B). While the
Supreme Court of Canada has reached an arguably contrary view,
and French courts are divided, a review of the international law con
firms that courts and other legal authorities in England, Israel, Aus
tria, South Africa, Germany, Australia, and Scotland have accepted
the rule that ne exeat rights are rights of custody within the Conven
tion’s meaning. Scholars agree that there is an emerging interna
tional consensus on the matter. And the Convention’s history is fully
consistent with the conclusion that ne exeat rights are just one of the
many ways in which custody of children can be exercised. Pp. 12–16.
(4) The Court’s holding also accords with the Convention’s objects
and purposes. There is no reason to doubt the ability of other con
tracting states to carry out their duty to make decisions in the best
interests of the children. To interpret the Convention to permit an
abducting parent to avoid a return remedy, even when the other par
ent holds a ne exeat right, runs counter to the Convention’s purpose of
deterring child abductions to a country that provides a friendlier fo
rum. Denying such a remedy would legitimize the very action, re
moval of the child, that the Convention was designed to prevent,
while requiring return of the child in cases like this one helps deter
abductions and respects the Convention’s purpose to prevent harms
4 ABBOTT v. ABBOTT
Syllabus
to the child resulting from abductions. Pp. 16–18.
(c) While a parent possessing a ne exeat right has a right of custody
and may seek a return remedy, return will not automatically be or
dered if the abducting parent can establish the applicability of a Con
vention exception, such as “a grave risk that . . . return would expose
the child to . . . harm or [an] otherwise . . . intolerable situation,” or
the objection to removal by a child who has reached a sufficient “age
and degree of maturity” to state a preference, Art. 13(b). The proper
interpretation and application of exceptions may be addressed on re
mand. P. 18.
542 F. 3d 1081, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined. STE-
VENS, J., filed a dissenting opinion, in which THOMAS and BREYER, JJ.,
joined.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–645
_________________
TIMOTHY MARK CAMERON ABBOTT, PETITIONER v.
JACQUELYN VAYE ABBOTT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2010]
JUSTICE KENNEDY delivered the opinion of the Court.
This case presents, as it has from its inception in the
United States District Court, a question of interpretation
under the Hague Convention on the Civil Aspects of In­
ternational Child Abduction (Convention), Oct. 24, 1980,
T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The
United States is a contracting state to the Convention; and
Congress has implemented its provisions through the
International Child Abduction Remedies Act (ICARA), 102
Stat. 437, 42 U. S. C. §11601 et seq. The Convention
provides that a child abducted in violation of “rights of
custody” must be returned to the child’s country of habit­
ual residence, unless certain exceptions apply. Art. 1, S.
Treaty Doc. No. 99–11, at 7 (Treaty Doc.). The question is
whether a parent has a “righ[t] of custody” by reason of
that parent’s ne exeat right: the authority to consent before
the other parent may take the child to another country.
I
Timothy Abbott and Jacquelyn Vaye Abbott married in
England in 1992. He is a British citizen, and she is a
citizen of the United States. Mr. Abbott’s astronomy
2 ABBOTT v. ABBOTT
Opinion of the Court
profession took the couple to Hawaii, where their son
A. J. A. was born in 1995. The Abbotts moved to La
Serena, Chile, in 2002. There was marital discord, and
the parents separated in March 2003. The Chilean courts
granted the mother daily care and control of the child,
while awarding the father “direct and regular” visitation
rights, including visitation every other weekend and for
the whole month of February each year. App. 9.
Chilean law conferred upon Mr. Abbott what is com­
monly known as a ne exeat right: a right to consent before
Ms. Abbott could take A. J. A. out of Chile. See Minors
Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a
(granting a ne exeat right to any parent with visitation
rights). In effect a ne exeat right imposes a duty on one
parent that is a right in the other. After Mr. Abbott ob­
tained a British passport for A. J. A., Ms. Abbott grew
concerned that Mr. Abbott would take the boy to Britain.
She sought and obtained a “ne exeat of the minor” order
from the Chilean family court, prohibiting the boy from
being taken out of Chile.
In August 2005, while proceedings before the Chilean
court were pending, the mother removed the boy from
Chile without permission from either the father or the
court. A private investigator located the mother and the
child in Texas. In February 2006, the mother filed for
divorce in Texas state court. Part of the relief she sought
was a modification of the father’s rights, including full
power in her to determine the boy’s place of residence and
an order limiting the father to supervised visitation in
Texas. This litigation remains pending.
Mr. Abbott brought an action in Texas state court,
asking for visitation rights and an order requiring Ms.
Abbott to show cause why the court should not allow Mr.
Abbott to return to Chile with A. J. A. In February 2006,
the court denied Mr. Abbott’s requested relief but granted
him “liberal periods of possession” of A. J. A. throughout
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
February 2006, provided Mr. Abbott remained in Texas.
App. 42.
In May 2006, Mr. Abbott filed the instant action in the
United States District Court for the Western District of
Texas. He sought an order requiring his son’s return to
Chile pursuant to the Convention and enforcement provi­
sions of the ICARA. In July 2007, after holding a bench
trial during which only Mr. Abbott testified, the District
Court denied relief. The court held that the father’s ne
exeat right did not constitute a right of custody under the
Convention and, as a result, that the return remedy was
not authorized. 495 F. Supp. 2d 635, 640.
The United States Court of Appeals for the Fifth Circuit
affirmed on the same rationale. The court held the father
possessed no rights of custody under the Convention be­
cause his ne exeat right was only “a veto right over his
son’s departure from Chile.” 542 F. 3d 1081, 1087 (2008).
The court expressed substantial agreement with the Court
of Appeals for the Second Circuit in Croll v. Croll, 229
F. 3d 133 (2000). Relying on American dictionary defini­
tions of “custody” and noting that ne exeat rights cannot be
“ ‘actually exercised’ ” within the meaning of the Conven­
tion, Croll held that ne exeat rights are not rights of cus­
tody. Id., at 138–141 (quoting Art. 3(b), Treaty Doc., at 7).
A dissenting opinion in Croll was filed by then-Judge
Sotomayor. The dissent maintained that a ne exeat right
is a right of custody because it “provides a parent with
decisionmaking authority regarding a child’s international
relocation.” 229 F. 3d, at 146.
The Courts of Appeals for the Fourth and Ninth Circuits
adopted the conclusion of the Croll majority. See Fawcett
v. McRoberts, 326 F. 3d 491, 500 (CA4 2003); Gonzalez v.
Gutierrez, 311 F. 3d 942, 949 (CA9 2002). The Court of
Appeals for the Eleventh Circuit has followed the reason­
ing of the Croll dissent. Furnes v. Reeves, 362 F. 3d 702,
720, n. 15 (2004). Certiorari was granted to resolve the
4 ABBOTT v. ABBOTT
Opinion of the Court
conflict. 557 U. S. ___ (2009).
II
The Convention was adopted in 1980 in response to the
problem of international child abductions during domestic
disputes. The Convention seeks “to secure the prompt
return of children wrongfully removed to or retained in
any Contracting State,” and “to ensure that rights of
custody and of access under the law of one Contracting
State are effectively respected in the other Contracting
States.” Art. 1, Treaty Doc., at 7.
The provisions of the Convention of most relevance at
the outset of this discussion are as follows:
“Article 3: The removal or the retention of the child is
to be considered wrongful where—
“a it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly
or alone, under the law of the State in which the child
was habitually resident immediately before the re­
moval or retention; and
“b at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
. . . . .
“Article 5: For the purposes of this Convention—
“a ‘rights of custody’ 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;
“b ‘rights of access’ shall include the right to take a
child for a limited period of time to a place other than
the child’s habitual residence.
. . . . .
“Article 12: Where a child has been wrongfully re­
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
moved or retained in terms of Article 3 . . . the author­
ity concerned shall order the return of the child
forthwith.” Id., at 7, 9.
The Convention’s central operating feature is the return
remedy. When a child under the age of 16 has been
wrongfully removed or retained, the country to which the
child has been brought must “order the return of the child
forthwith,” unless certain exceptions apply. See, e.g., Arts.
4, 12, ibid. A removal is “wrongful” where the child was
removed in violation of “rights of custody.” The Conven­
tion defines “rights of custody” to “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.” Art.
5(a), id., at 7. A return remedy does not alter the pre-ab­
duction allocation of custody rights but leaves custodial
decisions to the courts of the country of habitual residence.
Art. 19, id., at 11. The Convention also recognizes “rights
of access,” but offers no return remedy for a breach of
those rights. Arts. 5(b), 21, id., at 7, 11.
The United States has implemented the Convention
through the ICARA. The statute authorizes a person who
seeks a child’s return to file a petition in state or federal
court and instructs that the court “shall decide the case in
accordance with the Convention.” 42 U. S. C. §§11603(a),
(b), (d). If the child in question has been “wrongfully
removed or retained within the meaning of the Conven­
tion,” the child shall be “promptly returned,” unless an
exception is applicable. §11601(a)(4).
III
As the parties agree, the Convention applies to this
dispute. A. J. A. is under 16 years old; he was a habitual
resident of Chile; and both Chile and the United States
are contracting states. The question is whether A. J. A.
was “wrongfully removed” from Chile, in other words,
whether he was removed in violation of a right of custody.
6 ABBOTT v. ABBOTT
Opinion of the Court
This Court’s inquiry is shaped by the text of the Conven­
tion; the views of the United States Department of State;
decisions addressing the meaning of “rights of custody” in
courts of other contracting states; and the purposes of the
Convention. After considering these sources, the Court
determines that Mr. Abbott’s ne exeat right is a right of
custody under the Convention.
A
“The interpretation of a treaty, like the interpretation of
a statute, begins with its text.” Medellín v. Texas, 552
U. S. 491, 506 (2008). This Court consults Chilean law to
determine the content of Mr. Abbott’s right, while follow­
ing the Convention’s text and structure to decide whether
the right at issue is a “righ[t] of custody.”
Chilean law granted Mr. Abbott a joint right to decide
his child’s country of residence, otherwise known as a
ne exeat right. Minors Law 16,618, art. 49 (Chile), App. to
Pet. for Cert. 61a, 62a, provides that “[o]nce the court has
decreed” that one of the parents has visitation rights, that
parent’s “authorization . . . shall also be required” before
the child may be taken out of the country, subject to court
override only where authorization “cannot be granted or is
denied without good reason.” Mr. Abbott has “direct and
regular” visitation rights and it follows from Chilean law,
that he has a shared right to determine his son’s country
of residence under this provision. App. 9. To support the
conclusion that Mr. Abbott’s right under Chilean law gives
him a joint right to decide his son’s country of residence, it
is notable that a Chilean agency has explained that Mi­
nors Law 16,618 is a “right to authorize the minors’ exit”
from Chile and that this provision means that neither
parent can “unilaterally” “establish the [child’s] place of
residence.” Letter from Paula Strap Camus, Director
General, Corporation of Judicial Assistance of the Region
Metropolitana, to National Center for Missing and Ex­
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
ploited Children (Jan. 17, 2006), App. to Pet. for Cert. in
Villegas Duran v. Arribada Beaumont, No. 08–775, pp.
35a–37a, cert. pending.
The Convention recognizes that custody rights can be
decreed jointly or alone, see Art. 3(a), Treaty Doc., at 7;
and Mr. Abbott’s joint right to determine his son’s country
of residence is best classified as a joint right of custody, as
the Convention defines that term. The Convention defines
“rights of custody” to “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.” Art. 5(a), ibid.Mr. Abbott’s ne exeat right gives him both the joint “right
to determine the child’s place of residence” and joint
“rights relating to the care of the person of the child.”
Mr. Abbott’s joint right to decide A. J. A.’s country of
residence allows him to “determine the child’s place of
residence.” The phrase “place of residence” encompasses
the child’s country of residence, especially in light of the
Convention’s explicit purpose to prevent wrongful removal
across international borders. See Convention Preamble,
Treaty Doc., at 7. And even if “place of residence” refers
only to the child’s street address within a country, a
ne exeat right still entitles Mr. Abbott to “determine” that
place. “[D]etermine” can mean “[t]o fix conclusively or
authoritatively,” Webster’s New International Dictionary
711 (2d ed. 1954) (2d definition), but it can also mean “[t]o
set bounds or limits to,” ibid. (1st definition), which is
what Mr. Abbott’s ne exeat right allows by ensuring that
A. J. A. cannot live at any street addresses outside of
Chile. It follows that the Convention’s protection of a
parent’s custodial “right to determine the child’s place of
residence” includes a ne exeat right.
Mr. Abbott’s joint right to determine A. J. A.’s country of
residence also gives him “rights relating to the care of the
person of the child.” Art. 5(a), Treaty Doc., at 7. Few
decisions are as significant as the language the child
8 ABBOTT v. ABBOTT
Opinion of the Court
speaks, the identity he finds, or the culture and traditions
she will come to absorb. These factors, so essential to self­
definition, are linked in an inextricable way to the child’s
country of residence. One need only consider the different
childhoods an adolescent will experience if he or she grows
up in the United States, Chile, Germany, or North Korea,
to understand how choosing a child’s country of residence
is a right “relating to the care of the person of the child.”
The Court of Appeals described Mr. Abbott’s right to take
part in making this decision as a mere “veto,” 542 F. 3d, at
1087; but even by that truncated description, the father
has an essential role in deciding the boy’s country of resi­
dence. For example, Mr. Abbott could condition his con­
sent to a change in country on A. J. A.’s moving to a city
outside Chile where Mr. Abbott could obtain an astronomy
position, thus allowing the father to have continued con­
tact with the boy.
That a ne exeat right does not fit within traditional
notions of physical custody is beside the point. The Con­
vention defines “rights of custody,” and it is that definition
that a court must consult. This uniform, text-based ap­
proach ensures international consistency in interpreting
the Convention. It forecloses courts from relying on defi­
nitions of custody confined by local law usage, definitions
that may undermine recognition of custodial arrange­
ments in other countries or in different legal traditions,
including the civil-law tradition. And, in any case, our
own legal system has adopted conceptions of custody that
accord with the Convention’s broad definition. Joint legal
custody, in which one parent cares for the child while the
other has joint decisionmaking authority concerning the
child’s welfare, has become increasingly common. See
Singer, Dispute Resolution and the Postdivorce Family:
Implications of a Paradigm Shift, 47 Family Ct. Rev. 363,
366 (2009) (“[A] recent study of child custody outcomes in
North Carolina indicated that almost 70% of all custody
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
resolutions included joint legal custody, as did over 90% of
all mediated custody agreements”); E. Maccoby & R.
Mnookin, Dividing the Child: Social and Legal Dilemmas
of Custody 107 (1992) (“[F]or 79% of our entire sample, the
[California] divorce decree provided for joint legal cus­
tody”); see generally Elrod, Reforming the System to Pro­
tect Children in High Conflict Custody Cases, 28 Wm.
Mitchell L. Rev. 495, 505–508 (2001).
Ms. Abbott gets the analysis backwards in claiming that
a ne exeat right is not a right of custody because the Con­
vention requires that any right of custody must be capable
of exercise. The Convention protects rights of custody
when “at the time of removal or retention those rights
were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.”
Art. 3(b), Treaty Doc., at 7. In cases like this one, a
ne exeat right is by its nature inchoate and so has no
operative force except when the other parent seeks to
remove the child from the country. If that occurs, the
parent can exercise the ne exeat right by declining consent
to the exit or placing conditions to ensure the move will be
in the child’s best interests. When one parent removes the
child without seeking the ne exeat holder’s consent, it is an
instance where the right would have been “exercised but
for the removal or retention.” Ibid.The Court of Appeals’ conclusion that a breach of a ne
exeat right does not give rise to a return remedy would
render the Convention meaningless in many cases where
it is most needed. The Convention provides a return
remedy when a parent takes a child across international
borders in violation of a right of custody. The Convention
provides no return remedy when a parent removes a child
in violation of a right of access but requires contracting
states “to promote the peaceful enjoyment of access
rights.” Art. 21, id., at 11. For example, a court may force
the custodial parent to pay the travel costs of visitation,
10 ABBOTT v. ABBOTT
Opinion of the Court
see, e.g., Viragh v. Foldes, 415 Mass. 96, 109–111, 612
N. E. 2d 241, 249–250 (1993), or make other provisions for
the noncustodial parent to visit his or her child, see
§11603(b) (authorizing petitions to “secur[e] the effective
exercise of rights of access to a child”). But unlike rights
of access, ne exeat rights can only be honored with a return
remedy because these rights depend on the child’s location
being the country of habitual residence.
Any suggestion that a ne exeat right is a “righ[t] of
access” is illogical and atextual. The Convention defines
“rights of access” as “includ[ing] the right to take a child
for a limited period of time to a place other than the child’s
habitual residence,” Art. 5(b), Treaty Doc., at 7, and
ICARA defines that same term as “visitation rights,”
§11602(7). The joint right to decide a child’s country of
residence is not even arguably a “right to take a child for a
limited period of time” or a “visitation righ[t].” Reaching
the commonsense conclusion that a ne exeat right does not
fit these definitions of “rights of access” honors the Con­
vention’s distinction between rights of access and rights of
custody.
Ms. Abbott argues that the ne exeat order in this case
cannot create a right of custody because it merely protects
a court’s jurisdiction over the child. Even if this argument
were correct, it would not be dispositive. Ms. Abbott
contends the Chilean court’s ne exeat order contains no
parental consent provision and so awards the father no
rights, custodial or otherwise. See Brief for Respondent
22; but see 495 F. Supp. 2d, at 638, n. 3 (the District Court
treating the order as containing a consent provision); 542
F. 3d, at 1084 (same for the Court of Appeals). Even a
ne exeat order issued to protect a court’s jurisdiction pend­
ing issuance of further decrees is consistent with allowing
a parent to object to the child’s removal from the country.
This Court need not decide the status of ne exeat orders
lacking parental consent provisions, however; for here the
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
father relies on his rights under Minors Law 16,618. Mr.
Abbott’s rights derive not from the order but from Minors
Law 16,618. That law requires the father’s consent before
the mother can remove the boy from Chile, subject only to
the equitable power family courts retain to override any
joint custodial arrangements in times of disagreement.
Minors Law 16,618; see 1 J. Atkinson, Modern Child
Custody Practice §6–11 (2d ed. 2009) (“[T]he court remains
the final arbiter and may resolve the [dispute between
joint custodians] itself or designate one parent as having
final authority on certain issues affecting the child”);
Lombardo v. Lombardo, 202 Mich. App. 151, 159, 507
N. W. 2d 788, 792 (1993) (“[W]here the parents as joint
custodians cannot agree on important matters such as
education, it is the court’s duty to determine the issue in
the best interests of the child”). The consent provision in
Minors Law 16,618 confers upon the father the joint right
to determine his child’s country of residence. This is a
right of custody under the Convention.
B
This Court’s conclusion that Mr. Abbott possesses a
right of custody under the Convention is supported and
informed by the State Department’s view on the issue.
The United States has endorsed the view that ne exeat
rights are rights of custody. In its brief before this Court
the United States advises that “the Department of State,
whose Office of Children’s Issues serves as the Central
Authority for the United States under the Convention, has
long understood the Convention as including ne exeat
rights among the protected ‘rights of custody.’ ” Brief for
United States as Amicus Curiae 21; see Sumitomo Shoji
America, Inc. v. Avagliano, 457 U. S. 176, 184–185, n. 10
(1982) (deferring to the Executive’s interpretation of a
treaty as memorialized in a brief before this Court). It is
well settled that the Executive Branch’s interpretation of
12 ABBOTT v. ABBOTT
Opinion of the Court
a treaty “is entitled to great weight.” Id., at 185. There is
no reason to doubt that this well-established canon of
deference is appropriate here. The Executive is well in­
formed concerning the diplomatic consequences resulting
from this Court’s interpretation of “rights of custody,”
including the likely reaction of other contracting states
and the impact on the State Department’s ability to re­
claim children abducted from this country.
C
This Court’s conclusion that ne exeat rights are rights of
custody is further informed by the views of other contract­
ing states. In interpreting any treaty, “[t]he ‘opinions of
our sister signatories’ . . . are ‘entitled to considerable
weight.’ ” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
525 U. S. 155, 176 (1999) (quoting Air France v. Saks, 470
U. S. 392, 404 (1985)). The principle applies with special
force here, for Congress has directed that “uniform inter­
national interpretation of the Convention” is part of the
Convention’s framework. See §11601(b)(3)(B).
A review of the international case law confirms broad
acceptance of the rule that ne exeat rights are rights of
custody. In an early decision, the English High Court of
Justice explained that a father’s “right to ensure that the
child remain[ed] in Australia or live[d] anywhere outside
Australia only with his approval” is a right of custody
requiring return of the child to Australia. C. v. C., [1989]
1 W. L. R. 654, 658 (C. A.). Lords of the House of Lords
have agreed, noting that C. v. C.’s conclusion is “settled, so
far as the United Kingdom is concerned” and “appears to
be the majority [view] of the common law world.” See In
re D (A Child), [2007] 1 A. C. 619, 628, 633, 635 (2006).
The Supreme Court of Israel follows the same rule,
concluding that “the term ‘custody’ should be interpreted
in an expansive way, so that it will apply [i]n every case in
which there is a need for the consent of one of the parents
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
to remove the children from one country to another.” CA
5271/92 Foxman v. Foxman, [1992], §§3(D), 4 (K. Chagall
transl.). The High Courts of Austria, South Africa, and
Germany are in accord. See Oberster Gerichtshof
[O. G. H.] [Supreme Court] Feb. 5, 1992, 2 Ob 596/91
(Austria) (“Since the English Custody Court had ordered
that the children must not be removed from England and
Wales without the father’s written consent, both parents
had, in effect, been granted joint custody concerning the
children’s place of residence”); Sonderup v. Tondelli,
2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa
2000) (“[The mother’s] failure to return to British Colum­
bia with the child . . . was a breach of the conditions upon
which she was entitled to exercise her rights of custody
and . . . therefore constituted a wrongful retention . . . as
contemplated by [Article 3] of the Convention”); Bundes­
verfassungsgericht [BVerfG] [Federal Constitutional
Court of Germany] July 18, 1997, 2 BvR 1126/97, ¶15 (the
Convention requires a return remedy for a violation of the
“right to have a say in the child’s place of residence”).
Appellate courts in Australia and Scotland agree. See In
the Marriage of Resina [1991] FamCA 33 (Austl., May 22,
1991), ¶¶18–27; A. J. v. F. J., [2005] CSIH 36, 2005 1 S. C.
428, 435–436.
It is true that some courts have stated a contrary view,
or at least a more restrictive one. The Canadian Supreme
Court has said ne exeat orders are “usually intended” to
protect access rights. Thomson v. Thomson, [1994] 3
S. C. R. 551, 589–590, 119 D. L. R. (4th) 253, 281; see D. S.
v. V. W., [1996] 2 S. C. R. 108, 134 D. L. R. (4th) 481. But
the Canadian cases are not precisely on point here.
Thomson ordered a return remedy based on an interim
ne exeat order, and only noted in dicta that it may not
order such a remedy pursuant to a permanent ne exeat
order. See [1994] 3 S. C. R., at 589–590, 119 D. L. R. (4th),
at 281. D. S. involved a parent’s claim based on an im­
14 ABBOTT v. ABBOTT
Opinion of the Court
plicit ne exeat right and, in any event, the court ordered a
return remedy on a different basis. See [1996] 2 S. C. R.,
at 140–141, 142, 134 D. L. R. (4th), at 503–504, 505.
French courts are divided. A French Court of Appeals
held that “the right to accept or refuse the removal of the
children’s residence” outside of a region was “a joint exer­
cise of rights of custody.” Public Ministry v. M. B., [CA]
Aix-en-Provence, 6e ch., Mar. 23, 1989, Rev. crit. dr. inter­
nat. Privé 79(3), July–Sept. 1990, 529, 533–535. A trial
court in a different region of France rejected this view,
relying on the mother’s “fundamental liberty” to establish
her domicil. See Attorney for the Republic at Périgueux v.
Mrs. S., [T. G. I.] Périgueux, Mar. 17, 1992, Rev. cr. dr.
internat. Privé 82(4) Oct.–Dec. 1993, 650, 651–653, note
Bertrand Ancel, D. 1992, note G. C.
Scholars agree that there is an emerging international
consensus that ne exeat rights are rights of custody, even if
that view was not generally formulated when the Conven­
tion was drafted in 1980. At that time, joint custodial
arrangements were unknown in many of the contracting
states, and the status of ne exeat rights was not yet well
understood. See 1980 Conférence de La Haye de droit
international privé, Enlèvement d’enfants, morning meet­
ing of Wed., Oct. 8, 1980 (discussion by Messrs. Leal & van
Boeschoten), in 3 Actes et Documents de la Quatorzième
session, pp. 263–266 (1982) (Canadian and Dutch dele­
gates disagreeing whether the Convention protected
ne exeat rights, while agreeing that it should protect such
rights). Since 1980, however, joint custodial arrange­
ments have become more common. See supra, at 8–9.
And, within this framework, most contracting states and
scholars now recognize that ne exeat rights are rights of
custody. See, e.g., Hague Conference on Private Interna­
tional Law: Transfrontier Contact Concerning Children:
General Principles and Guide to Good Practice §9.3, p. 43
(2008) (“[P]reponderance of the case law supports the
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
view” that ne exeat rights are “rights of custody” (footnote
omitted)); Hague Conference on Private International
Law: Overall Conclusions of the Special Commission of
Oct. 1989 on the Operation of the Hague Convention of 25
Oct. 1980 on the Civil Aspects of International Child
Abduction, reprinted in 29 I. L. M. 219, 222, ¶9 (1990);
Hague Conference on Private International Law: Report of
the Second Special Commission Meeting to Review the
Operation of the Hague Convention on the Civil Aspects of
International Child Abduction 11 (1993), reprinted in 33
I. L. M. 225 (1994); Silberman, The Hague Child Abduc­
tion Convention Turns Twenty: Gender Politics and Other
Issues, 33 N. Y. U. J. Int’l L. & Pol. 221, 226–232, and
n. 13 (2000); Whitman, Croll v. Croll: The Second Circuit
Limits “Custody Rights” Under the Hague Convention on
the Civil Aspects of International Child Abduction, 9
Tulane J. Int’l & Comp. L. 605, 611–616 (2001).
A history of the Convention, known as the Pérez-Vera
Report, has been cited both by the parties and by Courts of
Appeals that have considered this issue. See 1980 Con­
férence de La Haye de droit international privé, Enlève­
ment d’enfants, E. Pérez-Vera, Explanatory Report (Pérez-
Vera Report or Report), in 3 Actes et Documents de la
Quatorzième session, pp. 425–473 (1982). We need not
decide whether this Report should be given greater weight
than a scholarly commentary. Compare Hague Interna­
tional Child Abduction Convention; Text and Legal Analy­
sis, 51 Fed. Reg. 10503–10506 (1986) (identifying the
Report as the “official history” of the Convention and “a
source of background on the meaning of the provisions of
the Convention”), with Pérez-Vera Report ¶8, at 427–428
(“[the Report] has not been approved by the Conference,
and it is possible that, despite the Rapporter’s [sic] efforts
to remain objective, certain passages reflect a viewpoint
which is in part subjective”). It suffices to note that the
Report supports the conclusion that ne exeat rights are
16 ABBOTT v. ABBOTT
Opinion of the Court
rights of custody. The Report explains that rather than
defining custody in precise terms or referring to the laws
of different nations pertaining to parental rights, the
Convention uses the unadorned term “rights of custody” to
recognize “all the ways in which custody of children can be
exercised” through “a flexible interpretation of the terms
used, which allows the greatest possible number of cases
to be brought into consideration.” Id., ¶¶67, 71, at 446,
447–448. Thus the Report rejects the notion that because
ne exeat rights do not encompass the right to make medi­
cal or some other important decisions about a child’s life
they cannot be rights of custody. Indeed, the Report is
fully consistent with the conclusion that ne exeat rights
are just one of the many “ways in which custody of chil­
dren can be exercised.” Id., ¶ 71, at 447.
D
Adopting the view that the Convention provides a re­
turn remedy for violations of ne exeat rights accords with
its objects and purposes. The Convention is based on the
principle that the best interests of the child are well
served when decisions regarding custody rights are made
in the country of habitual residence. See Convention
Preamble, Treaty Doc., at 7. Ordering a return remedy
does not alter the existing allocation of custody rights, Art.
19, id., at 11, but does allow the courts of the home coun­
try to decide what is in the child’s best interests. It is the
Convention’s premise that courts in contracting states will
make this determination in a responsible manner.
Custody decisions are often difficult. Judges must strive
always to avoid a common tendency to prefer their own
society and culture, a tendency that ought not interfere
with objective consideration of all the factors that should
be weighed in determining the best interests of the child.
This judicial neutrality is presumed from the mandate of
the Convention, which affirms that the contracting states
Cite as: 560 U. S. ____ (2010) 17
Opinion of the Court
are “[f]irmly convinced that the interests of children are of
paramount importance in matters relating to their cus­
tody.” Convention Preamble, Treaty Doc., at 7. Interna­
tional law serves a high purpose when it underwrites
the determination by nations to rely upon their domes­
tic courts to enforce just laws by legitimate and fair
proceedings.
To interpret the Convention to permit an abducting
parent to avoid a return remedy, even when the other
parent holds a ne exeat right, would run counter to the
Convention’s purpose of deterring child abductions by
parents who attempt to find a friendlier forum for deciding
custodial disputes. Ms. Abbott removed A. J. A. from
Chile while Mr. Abbott’s request to enhance his relation­
ship with his son was still pending before Chilean courts.
After she landed in Texas, the mother asked the state
court to diminish or eliminate the father’s custodial and
visitation rights. The Convention should not be inter­
preted to permit a parent to select which country will
adjudicate these questions by bringing the child to a dif­
ferent country, in violation of a ne exeat right. Denying a
return remedy for the violation of such rights would “le­
gitimize the very action—removal of the child—that the
home country, through its custody order [or other provi­
sion of law], sought to prevent” and would allow “parents
to undermine the very purpose of the Convention.” Croll,
229 F. 3d, at 147 (Sotomayor, J., dissenting). This Court
should be most reluctant to adopt an interpretation that
gives an abducting parent an advantage by coming here to
avoid a return remedy that is granted, for instance, in the
United Kingdom, Israel, Germany, and South Africa. See
supra, at 12–13.
Requiring a return remedy in cases like this one helps
deter child abductions and respects the Convention’s
purpose to prevent harms resulting from abductions. An
abduction can have devastating consequences for a child.
18 ABBOTT v. ABBOTT
Opinion of the Court
“Some child psychologists believe that the trauma children
suffer from these abductions is one of the worst forms of
child abuse.” H. R. Rep. No. 103–390, p. 2 (1993). A child
abducted by one parent is separated from the second
parent and the child’s support system. Studies have
shown that separation by abduction can cause psychologi­
cal problems ranging from depression and acute stress
disorder to posttraumatic stress disorder and identity­
formation issues. See N. Faulkner, Parental Child Abduc­
tion is Child Abuse (1999), http://www.prevent-abuse­
now.com/unreport.htm (as visited May 13, 2010, and
available in Clerk of Court’s case file). A child abducted at
an early age can experience loss of community and stabil­
ity, leading to loneliness, anger, and fear of abandonment.
See Huntington, Parental Kidnapping: A New Form of
Child Abuse (1982), in American Prosecutors Research
Institute’s National Center for Prosecution of Child Abuse,
Parental Abduction Project, Investigation and Prosecution
of Parental Abduction (1995) (App. A). Abductions may
prevent the child from forming a relationship with the left­
behind parent, impairing the child’s ability to mature. See
Faulkner, supra, at 5.
IV
While a parent possessing a ne exeat right has a right of
custody and may seek a return remedy, a return order is
not automatic. Return is not required if the abducting
parent can establish that a Convention exception applies.
One exception states return of the child is not required
when “there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.” Art.
13(b), Treaty Doc., at 10. If, for example, Ms. Abbott could
demonstrate that returning to Chile would put her own
safety at grave risk, the court could consider whether this
is sufficient to show that the child too would suffer “psy­
Cite as: 560 U. S. ____ (2010) 19
Opinion of the Court
chological harm” or be placed “in an intolerable situation.”
See, e.g., Baran v. Beaty, 526 F. 3d 1340, 1352–1353
(CA11 2008); Walsh v. Walsh, 221 F. 3d 204, 220–221
(CA1 2000). The Convention also allows courts to decline
to order removal if the child objects, if the child has
reached a sufficient “age and degree of maturity at which
it is appropriate to take account of its views.” Art. 13(b),
Treaty Doc., at 10. The proper interpretation and applica­
tion of these and other exceptions are not before this
Court. These matters may be addressed on remand.
* * *
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 560 U. S. ____ (2010) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–645
_________________
TIMOTHY MARK CAMERON ABBOTT, PETITIONER v.
JACQUELYN VAYE ABBOTT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2010]
JUSTICE STEVENS, with whom JUSTICE THOMAS and
JUSTICE BREYER join, dissenting.
Petitioner Timothy Abbott, the father of A. J. A., has no
authority to decide whether his son undergoes a particular
medical procedure; whether his son attends a school field
trip; whether and in what manner his son has a religious
upbringing; or whether his son can play a videogame
before he completes his homework. These are all rights
and responsibilities of A. J. A.’s mother, respondent Jac­
quelyn Abbott. It is she who received sole custody, or
“daily care and control,” of A. J. A. when the expatriate
couple divorced while living in Chile in 2004. 495 F. Supp.
2d 635, 637, and n. 2 (WD Tex. 2007). Mr. Abbott pos­
sesses only visitation rights.
On Ms. Abbott’s custodial rights, Chilean law placed a
restriction: She was not to travel with her son outside of
Chile without either Mr. Abbott’s or the court’s consent.
Put differently, Mr. Abbott had the opportunity to veto
Ms. Abbott’s decision to remove A. J. A. from Chile unless
a Chilean court overrode that veto. The restriction on
A. J. A.’s and Ms. Abbott’s travel was an automatic, de­
fault provision of Chilean law operative upon the award of
visitation rights under Article 48 of Chile’s Minors Law
16,618. It is this travel restriction—also known as a ne
exeat clause—that the Court today declares is a “ ‘righ[t] of
2 ABBOTT v. ABBOTT
STEVENS, J., dissenting
custody’ ” within the meaning of the Hague Convention on
the Civil Aspects of International Child Abduction (Con­
vention), Oct. 25, 1980, T. I. A. S. No. 11670, S. Treaty
Doc. No. 99–11. Ante, at 1.
Because the Court concludes that this travel restriction
constitutes a right of custody, and because Ms. Abbott
indisputably violated the restriction when she took A. J. A.
from Chile without either Mr. Abbott’s or the court’s per­
mission, Mr. Abbott is now entitled to the return of
A. J. A. to Chile under the terms of the Convention. Thus,
absent a finding of an exception to the Convention’s pow­
erful return remedy, see ante, at 18–19, and even if the
return is contrary to the child’s best interests, an Ameri­
can court must now order the return of A. J. A. to Mr.
Abbott, who has no legal authority over A. J. A., based
solely on his possessing a limited veto power over Ms.
Abbott’s ability to take A. J. A. from Chile. As I shall
explain, use of the Convention’s return remedy under
these circumstances is contrary to the Convention’s text
and purpose.
I
When the drafters of the Convention gathered in 1980,
they sought an international solution to an emerging
problem: transborder child abductions perpetrated by
noncustodial parents “to establish artificial jurisdictional
links . . . with a view to obtaining custody of a child.” 1980
Conférence de La Haye de droit international privé,
Enlèvement d’enfants, E. Pérez-Vera, Explanatory Report
(Pérez-Vera Report), in 3 Actes et Documents de la Qua­
torzième session ¶11, p. 426 (1982);1 see also Convention
——————
1 As the Court recognizes, see ante, at 15, the Executive Branch con­
siders the Pérez-Vera Report “the ‘official history’ ” for the Convention
and “a source of background on the meaning of the provisions of the
Convention available to all States becoming parties to it.” Legal
Analysis of Hague Convention on the Civil Aspects of International
Cite as: 560 U. S. ____ (2010) 3
STEVENS, J., dissenting
Analysis 1054 (“[F]undamental purpose” of the Convention
is “to protect children from wrongful international remov­
als or retention by persons bent on obtaining their physi­
cal and/or legal custody”). The drafters’ primary concern
was to remedy abuses by noncustodial parents who at­
tempt to circumvent adverse custody decrees (e.g., those
granting sole custodial rights to the other parent) by
seeking a more favorable judgment in a second nation’s
family court system. Pérez-Vera Report ¶14, at 429.
The drafters determined that when a noncustodial
parent abducts a child across international borders, the
best remedy is return of that child to his or her country of
habitual residence—or, in other words, the best remedy is
return of the child to his or her custodial parent. Id., ¶18,
at 430. The drafters concluded that the same remedy
should not follow, however, when a custodial parent takes
a child from his or her country of habitual residence in
breach of the other parent’s visitation rights, or “rights of
access” in the Convention’s parlance. Id., ¶65, at 444–445.
The distinction between rights of custody and rights of
access, therefore, is critically important to the Conven­
tion’s scheme and purpose. It defines the scope of the
available Convention remedies.
Article 5 defines these rights as follows:
“For the purposes of this Convention—
“a ‘rights of custody’ 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;
“b ‘rights of access’ shall include the right to take a
child for a limited period of time to a place other than
the child’s habitual residence.” S. Treaty Doc. No. 99–
11, at 7 (hereinafter Treaty Doc.).
——————
Child Abduction, 51 Fed. Reg. 10503 (1986) (hereinafter Convention
Analysis).
4 ABBOTT v. ABBOTT
STEVENS, J., dissenting
Article 3 of the Convention provides that the removal or
retention of a child is “wrongful,” and thus in violation of
the Convention, only when the removal “is in breach of the
rights of custody.” Art. 3(a), ibid. The fact that a removal
may be “wrongful” in the sense that it violates domestic
law or violates only “rights of access” does not make it
“wrongful” within the meaning of the Convention.
Only when a removal is “wrongful” under Article 3 may
the parent who possesses custody rights force the child’s
return to the country of habitual residence under the
Convention’s remedial procedures, pursuant to Articles 8
through 20. For those removals that frustrate a noncusto­
dial parent’s “rights of access,” the Convention provides
that the noncustodial parent may file an application “to
make arrangements for organizing or securing the effec­
tive exercise of rights of access”; but he may not force the
child’s return. Art. 21, id., at 11. A parent without “rights
of custody,” therefore, does not have the power granted by
Article 3 to compel the child’s return to his or her country
of habitual residence. His rights are limited to those set
forth in Article 21.
II
Mr. Abbott, claiming “rights of custody” by virtue of the
travel restriction Chilean law places on Ms. Abbott, seeks
the return of A. J. A. to Chile. Such relief is warranted
only if A. J. A.’s removal was “wrongful” within the mean­
ing of the Convention; as such, it must have been “in
breach of [Mr. Abbott’s] rights of custody.”2 Art. 3, id., at
——————
2 Indisputably,
Ms. Abbott’s removal of A. J. A. from Chile was wrong­
ful in the generic sense of the word. She violated Chilean law when she
took A. J. A. to Texas because she sought neither Mr. Abbott’s permis­
sion nor the court’s authorization before doing so. She violated both the
existing “ne exeat” order imposed by judicial decree in the couple’s
custody dispute, see ante, at 2, as well as Chilean statutory law defin­
ing the access rights of noncustodial parents, see Art. 49, Minors Law
16,618, App. to Pet. for Cert. 61a. The removal was illegal, then, but it
Cite as: 560 U. S. ____ (2010) 5
STEVENS, J., dissenting
7. Putting aside the effect of the travel restriction, it is
undisputed that Ms. Abbott possesses “rights of custody”
over A. J. A. while Mr. Abbott would possess “rights of
access,” as those terms are used in the Convention. Brief
for Petitioner 6; Brief for Respondent 6. The only issue in
this case, therefore, is whether Mr. Abbott also possesses
“rights of custody” within the meaning of the Convention
by virtue of the travel restriction, or ne exeat clause,3 that
Chilean law imposes on Ms. Abbott. In other words, the
question is whether the “right” of one parent to veto the
other parent’s decision to remove a child from the country,
subject to judicial override, belongs in the category of
“rights relating to the care of the person of the child and,
in particular, the right to determine the child’s place of
residence.” Art. 5(a), Treaty Doc., at 7. In my judgment,
it clearly does not, and I need look no further than to the
Convention’s text to explain why. See Medellín v. Texas,
552 U. S. 491, 506 (2008) (“The interpretation of a treaty,
like the interpretation of a statute, begins with its text”).
Rights relating to the care of the child. The Court con­
cludes that the veto power Mr. Abbott has over Ms. Ab­
bott’s travel plans is equivalent to those rights “ ‘relating
to the care of the person of the child.’ ” Ante, at 7–8. This
is so, the Court tells us, because Mr. Abbott has a limited
power to keep A. J. A. within Chile’s bounds and, there­
fore, indirectly to influence “the language the child speaks,
——————
was only wrongful within the meaning of the Convention if it was in
breach of Mr. Abbott’s rights of custody. Unfortunately, I fear the
Court’s preoccupation with deterring parental misconduct—even,
potentially, at the sake of the best interests of the child—has caused it
to minimize this important distinction.
3 The Court repeatedly refers to “ne exeat rights,” ante, at 3, 10, 11,
12, 14, 15, and 16, as if the single travel restriction at issue in this case
were on a par with the multiple rights commonly exercised by custodial
parents. Chile’s statutory ne exeat provision is better characterized as
a restriction on the travel of both the minor and the custodial parent
than as a bundle of “rights” possessed by the noncustodial parent.
6 ABBOTT v. ABBOTT
STEVENS, J., dissenting
the identity he finds, or the culture and traditions she will
come to absorb.” Ante, at 7. It is not nearly as self-evident
as the Court assumes that Mr. Abbott’s veto power carries
with it any ability to decide the language A. J. A. speaks
or the cultural experiences he will have, ante, at 7–8. A. J.
A.’s mere presence in Chile does not determine any num­
ber of issues, including: whether A. J. A. learns Spanish
while there; whether he attends an American school or a
British school or a local school; whether he participates in
sports; whether he is raised Catholic or Jewish or Bud­
dhist or atheist; whether he eats a vegetarian diet; and on
and on. The travel restriction does not confer upon Mr.
Abbott affirmative power to make any number of decisions
that are vital to A. J. A.’s physical, psychological, and
cultural development. To say that a limited power to veto
a child’s travel plans confers, also, a right “relating to the
care” of that child devalues the great wealth of decisions a
custodial parent makes on a daily basis to attend to a
child’s needs and development.
The Court’s interpretation depends entirely on a broad
reading of the phrase “relating to” in the Convention’s
definition of “rights of custody.” It is, undeniably, broad
language. But, as the Court reads the term, it is so broad
as to be utterly unhelpful in interpreting what “rights of
custody” means. We “cannot forget that we ultimately are
determining the meaning of the term” rights of custody in
this case, and we should not lose sight of the import of this
term in construing the broad words that follow in its wake.
Leocal v. Ashcroft, 543 U. S. 1, 11 (2004). I suppose it
could be said that Mr. Abbott’s ability to decide whether
A. J. A. spends the night with one of his friends during a
Saturday visit is also a “right relating to the care of the
child.” Taken in the abstract—and to its most absurd—
any decision on behalf of a child could be construed as a
right “relating to” the care of a child.
Cite as: 560 U. S. ____ (2010) 7
STEVENS, J., dissenting
Such a view of the text obliterates the careful distinction
the drafters drew between the rights of custody and the
rights of access. Undoubtedly, they were aware of the
concept of joint custody. See Pérez-Vera Report ¶71, at
457 (“[C]ustody rights may have been awarded . . . to that
person in his own right or jointly. It cannot be otherwise
in an era when types of joint custody, regarded as best
suited to the general principle of sexual non­
discrimination, are gradually being introduced into inter­
nal law”). But just because rights of custody can be shared
by two parents, it does not follow that the drafters in­
tended this limited veto power to be a right of custody.
And yet this, it seems, is how the Court understands the
case: Because the drafters intended to account for joint
custodial arrangements, they intended for this travel
restriction to be joint custody because it could be said, in
some abstract sense, to relate to care of the child. I fail to
understand how the Court’s reading is faithful to the
Convention’s text and purpose, given that the text ex­
pressly contemplates two distinct classes of parental
rights. Today’s decision converts every noncustodial par­
ent with access rights—at least in Chile—into a custodial
parent for purposes of the Convention.
On this point, it is important to observe the effect of the
Court’s decision to classify the travel restriction as a right
“relating to” A. J. A.’s care. Mr. Abbott possesses no legal
authority presently to exercise care or control of A. J. A.,
or to make decisions on his behalf. The Court would nev­
ertheless read the Convention to require A. J. A.’s return
to a parent without such rights merely because the travel
restriction, in an abstract sense, could be said to relate to
A. J. A.’s care. The Court fails to explain how a parent
who otherwise possesses no legal authority to exercise
“charge,” “supervision,” or “management” over a child, see
Webster’s Third New International Dictionary 338 (1986)
(hereinafter Webster’s) (5th definition of “care”), can be­
8 ABBOTT v. ABBOTT
STEVENS, J., dissenting
come a joint custodian of a child merely because he can
attempt to veto one of the countless decisions the child’s
other parent has sole legal authority to make on the
child’s behalf.
The right to determine the child’s place of residence. The
Court also concludes that Mr. Abbott’s veto power satisfies
the Convention’s definition of custodial rights because it
is, in the Court’s view, a “right to determine the child’s
place of residence.” Art. 5(a), Treaty Doc., at 7. I disagree
with the Court’s assessment of the significance and mean­
ing of this phrase, both on its face and within the context
of the Convention’s other provisions.
As an initial matter, the Court’s reading of the Conven­
tion depends on isolating the phrase “and, in particular,
the right to determine the child’s place of residence” to
refer to a freestanding right separate and apart from the
rights related to the care of the child. I do not agree with
this view of the text, nor did the Convention’s drafters:
“The Convention seeks to be more precise by empha­
sizing, as an example of the ‘care’ referred to [in the
“ ‘rights of custody’ ” clause, Art. 5(a)], the right to de­
termine the child’s place of residence. However, if the
child, although still a minor at law, has the right itself
to determine its own place of residence, the substance
of the custody rights will have to be determined in the
context of other rights concerning the person of the
child.” Pérez-Vera Report ¶84, at 452 (emphasis
added).
The drafters thus intended the “right to determine the
child’s place of residence” to be an “example” of what the
Convention means by “care of the person of the child.” It
is indicative of the “substance” of what it means to be a
custodial parent. The definition is not, as the Court would
have it, one stick in the bundle that may be parsed as a
singular “ ‘righ[t] of custody,’ ” ante, at 1; rather, it is a
Cite as: 560 U. S. ____ (2010) 9
STEVENS, J., dissenting
shorthand method to assess what types of rights a parent
may have. The parent responsible for determining where
and with whom a child resides, the drafters assumed,
would likely also be the parent who has the responsibility
to “care” for the child.
Yet even assuming, as the Court does, that the “right to
determine the child’s place of residence,” Art. 5(a), Treaty
Doc., at 7, is divisible from the “care” of the child, ibid., I
still fail to understand how a travel restriction on one
parent’s exercise of her custodial rights is equivalent to an
affirmative “right to determine the child’s place of resi­
dence.” Analyzing its text, in the context of the Conven­
tion’s focus on distinguishing custodial parents from non­
custodial ones, leads me to conclude that the “right to
determine the child’s place of residence” means the power
to set or fix the location of the child’s home. It does not
refer to the more abstract power to keep a child within one
nation’s borders.
“To determine” means “to fix conclusively or authorita­
tively” or “to settle a question or controversy.”4 Webster’s
616. A “place” is a “physical environment” or “a building
or locality used for a special purpose.” Id., at 1727. “Resi­
——————
4 “To determine” can also mean, as the Court observes, “ ‘to set
bounds or limits to,’ ” ante, at 7 (quoting Webster’s New International
Dictionary 711 (2d ed. 1954) (1st definition) (hereinafter Webster’s 2d)).
However, this definition of “to determine” makes little functional sense
as applied to this treaty. In the context of understanding the meaning
of rights of custody, the phrase “to determine” cannot be so indetermi­
nate as to merely set “limits to” a child’s place of residence.
Although the Court emphasizes that the definition of “to deter­
mine” on which it relies is the first such entry in Webster’s, ante, at 7, it
is worth noting that surely the Court would not rely on the first such
definition of the word “care” in that source (“suffering of mind; grief;
sorrow”) to understand the Convention’s use of that word. See Web­
ster’s 2d, at 405. Instead, the fifth definition of that word—“charge,
supervision, management”—is clearly the relevant one. The point is
only that context, as well as common sense, matters when selecting
among possible definitions.
10 ABBOTT v. ABBOTT
STEVENS, J., dissenting
dence,” even standing alone, refers to a particular loca­
tion—and not, more generally, to a nation or country. In
the law, “residence” can mean: “[t]he act or fact of living in
a given place for some time”; “[t]he place where one actu­
ally lives”; or, “[a] house or other fixed abode; a dwelling.”
Black’s Law Dictionary 1423 (9th ed. 2009).5 Lay defini­
tions of “residence” similarly describe a specific location:
“the act or fact of abiding or dwelling in a place for some
time”; “the place where one actually lives or has his
home”; or, “a temporary or permanent dwelling place,
abode, or habitation.” Webster’s 1931. It follows that a
“place of residence” describes a “physical” location in
which a child “actually lives.”
The Court’s reading of this text depends on its substitu­
tion of the word “country” for the word “place.” Such a
substitution is not illogical, of course, in light of the Con­
vention’s international focus. See Croll v. Croll, 229 F. 3d
133, 147, 148 (CA2 2000) (Sotomayor, J., dissenting) (read­
ing “place of residence” to mean “authority over the child’s
more specific living arrangements” “ignores the basic
international character of the Hague Convention”). But it
is inconsistent with the Convention’s text and purpose.
When the drafters wanted to refer to country, they did.
For example, in Article 3, the drafters explained that
rights of custody should be defined by looking to “the law
of the State in which the child was habitually resident.”
Art. 3(a), Treaty Doc., at 7. Had the drafters intended the
definition of the child’s “place of residence” in Article 5 to
refer to his or her “State” or country of “residence,” they
——————
5 “Residence” can also refer to “[t]he place where a corporation or
other enterprise does business or is registered to do business.” Black’s
Law Dictionary 1423. Earlier this Term, we recognized the self-evident
principle that a corporation’s principal “place” of business for diversity
jurisdiction purposes is a single location “within a State” and “not the
State itself.” Hertz Corp. v. Friend, 559 U. S. ___, ___ (2010) (slip op.,
at 14).
Cite as: 560 U. S. ____ (2010) 11
STEVENS, J., dissenting
could have defined the “right” at issue as “the right to
determine the child’s State of habitual residence.” But
they did not, even though they used the phrase “State of
habitual residence” no fewer than four other times else­
where within the Convention’s text.6 Moreover, the draft­
ers also explained that “reference[s] to habitual residence
in [a] State shall be construed as referring to habitual
residence in a territorial unit of that State.” Art. 31(a), id.,
at 13 (emphasis added). The point is: When the drafters
wanted to refer to a particular geographic unit, they
did so.
Instead, the drafters elected the formulation “place of
residence,” which is also utilized similarly in the definition
of “rights of access.” See Art. 5(b), id., at 7 (defining
“ ‘rights of access’ ” to include “the right to take a child for
a limited period of time to a place other than the child’s
habitual residence” (emphasis added)). And they utilized
this phrase only within one particular Article, as opposed
to their more frequent use of “State of habitual residence”
throughout the Convention. In interpreting statutory
text, we ordinarily presume that the use of different words
is purposeful and evinces an intention to convey a differ­
ent meaning. See, e.g., Russello v. United States, 464 U. S.
——————
6 See, e.g., Preamble, Treaty Doc., at 7 (“Desiring to protect children
internationally from the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their prompt return to
the State of their habitual residence” (emphasis added)); Art. 8(f),
Treaty Doc., at 9 (stating that an application for return may be accom­
panied by “a certificate . . . emanating from . . . competent authority of
the State of the child’s habitual residence” (emphasis added)); Art. 14,
id., at 10 (explaining that when determining whether a removal is
wrongful, a contracting state “may take notice directly of the law of . . .
the State of the habitual residence of the child” (emphasis added)); Art.
15, ibid. (authorizing contracting state to obtain a decree from “the
authorities of the State of the habitual residence of the child” a decision
on whether removal was wrongful before ordering return (emphasis
added)).
12 ABBOTT v. ABBOTT
STEVENS, J., dissenting
16, 23 (1983) (“We refrain from concluding here that the
differing language in the two subsections has the same
meaning in each. We would not presume to ascribe this
difference to a simple mistake in draftsmanship”). There
is no reason we should presume otherwise in the context of
treaties.
Accordingly, I would give “place of residence” the loca­
tion-specific meaning its plain text connotes, irrespective
of the fact that this Convention concerns international
abduction. The right described by the Convention is the
right to decide, conclusively, where a child’s home will be.
And this makes a good deal of sense. The child lives with
the parent who has custodial rights or, in the language of
the Convention, “care of the person of the child,” Art. 5(a),
Treaty Doc., at 7. The child’s home—his or her “place of
residence”—is fixed by the custody arrangement.7 This
comports too with the Convention’s decision to privilege
the rights of custodians over the rights of those parents
with only visitation rights.
Understanding the effect of a travel restriction. So, the
question we confront is whether a travel restriction on one
parent’s right to embark on international travel with his
or her child creates in the other parent a “right to deter­
mine the child’s place of residence” or the ability “to fix
conclusively” the child’s “physical” “home.” Before answer­
ing this question, it is important to understand the nature
of the travel restriction we must classify.
The departure of a minor from Chile—including when
that child lives in a married, two-parent household—is
governed by Article 49 of §16,618 of that country’s Minors
Law. Under Chilean law, no minor is allowed outside of
——————
7 I do not mean to suggest by my view of the significance of a travel
restriction that there could not be a custody arrangement in which both
parents have the “right to determine the child’s place of residence.”
Art. 5(a), id., at 7. My view is only that the type of ne exeat provision at
issue in this case does not, by itself, confer such an affirmative right.
Cite as: 560 U. S. ____ (2010) 13
STEVENS, J., dissenting
the country without his or her parents’ authorization. Art.
49, Minors Law 16,618, App. to Pet. for Cert. 61a–62a.
Ordinarily, if the judge has entrusted custody of a child to
only one parent, the child may not leave without that
parent’s—the custodial parent’s—permission. See ibid.;
see also id., at 61a (“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”). But the statute further
provides that if the noncustodial parent has been granted
visitation rights, the authorization of the parent with
visitation rights shall also be required: “Once the court
has decreed the obligation to allow visits pursuant to the
preceding article,[8] authorization of the father or mother
who has the right to visit a child shall also be required.”
Ibid. (footnote added). The statute provides, also, an
important backstop in the event a noncustodial parent
denies authorization “without good reason”: A Chilean
court may grant the minor or his parent permission to
leave the country. Id., at 62a. Finally, if the custodial
parent does not return the child to Chile within the time
authorized, “the judge may decree the suspension of ali­
mony that may have been decreed.” Ibid.
Returning, then, to the question at hand: By virtue of
——————
8 The “preceding article” referred to, Article 48, simply provides:
“Each time a minor is entrusted to one of the parents or a third person,
such decision must include the obligation to allow the non-custodial
parent to exercise his or her right to visit. The decision should also
specify the way in which this right will be exercised. The judge may
order ex officio, upon the parties petition or in special cases, that the
same authorization be extended, to the minor’s ascendants or siblings,
through the means and under the conditions set by the judge. Ascen­
dants and siblings should be identified.” Memorandum from Graciela I.
Rodriguez-Ferrand, Senior Legal Specialist, Law Library of Congress,
to Supreme Court Library (Apr. 1, 2010) (available in Clerk of Court’s
case file (containing English translation of Art. 48, Minors Law
16,618)).
14 ABBOTT v. ABBOTT
STEVENS, J., dissenting
the restriction Chilean law places on Ms. Abbott’s move­
ment, Mr. Abbott has no “right to determine [A. J. A.’s]
place of residence.” He cannot “conclusively” “fix,” “settle,”
or “determine” the place where A. J. A. “actually lives or
has his home.” See supra, at 9–10. True, the travel re­
striction bestows upon the noncustodial parent a limited
power to prevent his child from leaving the country with­
out his permission, but it does not grant an affirmative
power to fix or set the location of the child’s home. Mr.
Abbott has no power whatever to determine where A. J. A.
actually lives within the nearly 300,000 square miles that
compose Chile. Even more important, Mr. Abbott has no
power whatever to select another country in which A. J. A.
would live, were Mr. Abbott’s work to take him to another
country altogether. In sum, a right to object to a proposed
departure gives a parent far less authority than a right to
determine where the child shall reside. Moreover, the
right to determine where to live within a country, as well
as what country to live in, is far broader than the limited
right to object to a child’s travel abroad.
In my view, the “right” Mr. Abbott has by virtue of the
travel restriction is therefore best understood as relating
to his “rights of access,” as the Convention defines that
term—and not as a standalone “ ‘righ[t] of custody,’ ” as the
Court defines it, ante, at 1. Chile’s statutory travel re­
striction provision is plainly ancillary to the access rights
the Chilean family court granted to him as the noncusto­
dial parent. By its terms, the obligation on the custodial
parent to seek the other parent’s permission before remov­
ing the child from Chile only operates upon the award of
visitation rights; it has nothing to do with custody rights.
And it operates automatically to facilitate the noncusto­
dial parent’s ability to access the child and to exercise his
visitation rights. In the best of all possible circumstances,
Mr. Abbott’s limited veto power assures him relatively
easy access to A. J. A. so that he may continue a meaning­
Cite as: 560 U. S. ____ (2010) 15
STEVENS, J., dissenting
ful relationship with his son. But this power, standing
alone, does not transform him into a custodian for pur­
poses of the Convention’s return remedy. Instead, it au­
thorizes him, pursuant to Article 21, to seek assistance
from this country in carrying out the Chilean family
court’s visitation order.
III
Although the Court recognizes, as it must, that “ ‘[t]he
interpretation of a treaty, like the interpretation of a
statute, begins with its text,’ ” ante, at 6 (quoting Medellín,
552 U. S., at 506), the Court’s analysis is atextual—at
least as far as the Convention’s text goes. The Court first
relies on the text of the Chilean law at issue and a single
Chilean administrator’s alleged interpretation thereof.9
——————
9 Because differences in statutory provisions, as well as cultural
differences and personal predilections, may affect the opinions of local
officials, I would attach no weight to the letter from Paula Strap
Camus, describing Article 49 of Chile’s Minors Law 16,618 as establish­
ing a shared right to determine the place of residence of a child.
Moreover, we have no obligation to defer, on questions of treaty inter­
pretation, to the nonjudicial decisions of another signatory state, let
alone a return request—a piece of advocacy—filed on behalf of Chile in
another case.
In any event, the letter cited offers much less support for the Court’s
position than meets the eye. Unlike in this case, in which a Chilean
court has already decreed Ms. Abbott to be A. J. A.’s sole custodian, in
Villegas Duran v. Beaumont, “no Judge of the Republic of Chile has
granted the custody of the child to her mother . . . .” Letter from Paula
Strap Camus, Director General, Corporation of Judicial Assistance of
the Region Metropolitana to National Center for Missing and Exploited
Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v.
Beaumont, O. T. 2008, No. 08–775, p. 36a. In other words, Ms. Camus’
letter request for the child’s return in that case depends on a provision
of Article 49 not at issue in this case: “If the custody of a legitimate
child has not been entrusted by the judge to any of his parents or to a
third party, the child may not leave without authorization of both
parents.” App. to Pet. for Cert. 61a. The travel restriction that bound
Ms. Abbott in this case, however, arose “[o]nce the court . . . decreed the
obligation to allow visits” by Mr. Abbott. Ibid. Although not before us,
16 ABBOTT v. ABBOTT
STEVENS, J., dissenting
See ante, at 6. While it is true that the meaning of Chile’s
statute matters to our determining whether a parent has
taken a child in “breach of rights of custody . . . under the
law of the State in which the child was habitually resident
immediately before the removal or retention,” Art. 3(a),
Treaty Doc., at 7, it does not and should not inform what
the Convention’s definition of “rights of custody” means in
the first place.
The Court also reminds us that the Convention’s terms
are to be broadly construed. See ante, at 15–16. To be
sure, the Convention’s leading interpretive authority
informs us that the Convention’s understanding of what
constitutes “rights of custody” is broad and flexible. See
Pérez-Vera Report ¶¶67, 71, 84, at 446, 447, 451–452.
And we are to apply its terms to “allo[w] the greatest
possible number of cases to be brought into consideration.”
Id., ¶67, at 446. But such breadth should not circumvent
the Convention’s text in order to sweep a travel restriction
under the umbrella of rights of custody.
A reading as broad and flexible as the Court’s eviscer­
ates the distinction the Convention draws between rights
of custody and rights of access. Indeed, the Court’s read­
ing essentially voids the Convention’s Article 21, which
provides a separate remedy for breaches of rights of ac­
cess. If a violation of this type of provision were not a
breach of the rights of access, I find it quite difficult to
imagine what the Convention’s drafters had in mind when
——————
there may be a sound basis for distinguishing the legal effect and
significance of a travel restriction in effect prior to an award of custody
to either or both parents, from one that occurs ancillary to the award of
visitation rights to a parent who has no custodial rights. Moreover, the
U. S. Department of State, at the time the Convention was ratified,
believed that the Convention would require return in these circum­
stances: “Children who are wrongfully removed or retained prior to the
entry of a custody order are protected by the Convention. There need
not be a custody order in effect in order to invoke the Convention’s
return provisions.” Convention Analysis 10505.
Cite as: 560 U. S. ____ (2010) 17
STEVENS, J., dissenting
they created a second, lesser remedy for the breach of
access rights. The drafters obviously contemplated that
some removals might be in violation of the law of the
child’s home nation, but not “wrongful” within the mean­
ing of the Convention—i.e., not in breach of “rights of
custody.” This is precisely why Article 5 carefully deline­
ates between the two types of parental rights in the first
place. And this is precisely why Article 21 exists.
Nevertheless, the Court has now decreed that whenever
an award of visitation rights triggers a statutory default
travel restriction provision, or is accompanied by a travel
restriction by judicial order, a parent possess a right of
custody within the meaning of the Convention. Such a
bright-line rule surely will not serve the best interests of
the child in many cases. See Pérez-Vera Report ¶25, at
432. It will also have surprising results. In Chile, for
example, as a result of this Court’s decision, all parents—
so long as they have the barest of visitation rights—now
also have joint custody within the meaning of the Conven­
tion and the right to utilize the return remedy.10
It bears emphasis that such a result—treating the type
——————
10 In 2003, the latest year for which statistics appear available,
Chile’s Central Authority, which is the entity responsible for adminis­
tering its obligations under the Hague Convention, made five outgoing
“access applications” under Article 21. Hague Conference on Private
International Law, International Child Abduction, N. Lowe, A Statisti­
cal Analysis of Applications Made in 2003 Under the [1980 Hague
Convention] on the Civil Aspects of International Child Abduction, Part
II–National Reports, p. 125 (Prelim. Doc. No. 3, 2006–2007) (hereinaf­
ter Lowe Analysis). Were the Court correct—and were the view the
Court ascribes to Chile’s interpretation of its own law also correct, see
ante, at 6–7—all of Chile’s outgoing applications under the Convention
almost certainly should have been “return applications” because any
person with rights of access under Chilean law, also has a right of
custody by virtue of the statutory ne exeat provision. It is plain that
even Chilean officials have not thought correct the Court’s interpreta­
tion of the intersection of the travel restriction in Article 49 of its
Minors Law 16,618 and the Convention.
18 ABBOTT v. ABBOTT
STEVENS, J., dissenting
of travel restriction at issue in this case as part of “rights
of custody”—will undermine the Convention’s careful
balance between the “rights of custody and the “rights of
access”:
“Although the problems which can arise from a breach
of access rights, especially where the child is taken
abroad by its custodian, were raised during the Four­
teenth Session, the majority view was that such situa­
tions could not be put in the same category as the
wrongful removals which it is sought to prevent.
“This example, and others like it where breach of ac­
cess rights profoundly upsets the equilibrium estab­
lished by a judicial or administrative decision, cer­
tainly demonstrate that decisions concerning the
custody of children should always be open to review.
This problem however defied all efforts the Hague
Conference to coordinate views thereon. A question­
able result would have been attained had the applica­
tion of the Convention, by granting the same degree of
protection to custody and access rights, led ultimately
to the substitution of the holders of one type of right by
those who held the other.” Id., ¶65, at 445 (emphasis
added; footnote omitted).
It seems the very same authority on which the Court
relies to support its broad, flexible reading of the Conven­
tion’s terms also tell us that the drafters expressly rejected
the very outcome the Court reaches today. Far from “ren­
der[ing] the Convention meaningless,” ante, at 9, a faithful
reading of the Convention’s text avoids the very “question­
able result” its drafters foresaw and attempted to preclude
were they to extend “the same degree of protection” “to
custody and access rights.” Pérez-Vera Report ¶65, at 445.
IV
Hence, in my view, the Convention’s language is plain
Cite as: 560 U. S. ____ (2010) 19
STEVENS, J., dissenting
and that language precludes the result the Court reaches.
See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S.
176, 180 (1982). In these circumstances, the “clear import
of treaty language controls” the decision. Ibid. To support
its reading of the text, however, the Court turns to author­
ity we utilize to aid us in interpreting ambiguous treaty
text: the position of the Executive Branch and authorities
from foreign jurisdictions that have confronted the ques­
tion before the Court.11 Ante, at 11–14. Were I to agree
with the Court that it is necessary turn to these sources to
resolve the question before us, I would not afford them the
weight the Court does in this case.
Views of the Department of State. Without discussing
precisely why, we have afforded “great weight” to “the
meaning given [treaties] by the departments of govern­
ment particularly charged with their negotiation and
enforcement.” Kolovrat v. Oregon, 366 U. S. 187, 194
(1961); see also Sumitomo, 457 U. S., at 184–185; Factor v.
Laubenheimer, 290 U. S. 276, 294 (1933). We have
awarded “great weight” to the views of a particular gov­
ernment department even when the views expressed by
the department are newly memorialized, see Sumitomo,
457 U. S., at 184, n. 10, and even when the views appear
contrary to those expressed by the department at the time
of the treaty’s signing and negotiation, ibid. In this case,
it appears that both are true: The Department of State’s
position, which supports the Court’s conclusion, is newly
memorialized, see Brief for United States as Amicus Cu­
riae 21, n. 13, and is possibly inconsistent with the De­
partment’s earlier position, see Convention Analysis
——————
11 See Art. 32, Vienna Convention on the Law of Treaties, May 23,
1969, 1155 U. N. T. S. 331, 340 (“Recourse may be had to supplemen­
tary means of interpretation . . . when the interpretation . . . (a) leaves
the meaning ambiguous or obscure; or (b) leads to a result which is
manifestly absurd or unreasonable”).
20 ABBOTT v. ABBOTT
STEVENS, J., dissenting
10504–10505.12
Putting aside any concerns arising from the fact that the
Department’s views are newly memorialized and chang­
ing, I would not in this case abdicate our responsibility to
interpret the Convention’s language. This does not seem
to be a matter in which deference to the Executive on
matters of foreign policy would avoid international con­
flict, cf. Itel Containers Int’l Corp. v. Huddleston, 507 U. S.
60, 76 (1993) (acknowledging that “the nuances of foreign
policy ‘are much more the province of the Executive
Branch and Congress than of this Court’ ” (quoting Con­
tainer Corp. of America v. Franchise Tax Bd., 463 U. S.
159, 196 (1983))); the State Department has made no such
argument. Nor is this a case in which the Executive’s
understanding of the treaty’s drafting history is particu­
——————
12 The State Department explained to the Senate at the time it sought
ratification of the Convention that the “fundamental purpose of the
Hague Convention” was “to protect children from wrongful interna­
tional removals or retentions by persons bent on obtaining their physi­
cal and/or legal custody.” Convention Analysis 10504. I find it quite
unlikely, in light of its framing of the “fundamental purpose” of the
Convention, that the State Department would have agreed at the time
that a removal was “wrongful” within the meaning of the Convention
when a parent with physical custody of a child took that child to an­
other country, even when that removal was in violation of a restriction
on the custodial parent’s travel rights. See also Brief for Eleven Law
Professors as Amici Curiae 4–5, n. 7. Even more telling, however, is
the fact that, in a response to a questionnaire used by the Convention’s
drafters in preparing the treaty, the United States characterized a
ne exeat right as one with “the purpose of preserving the jurisdiction of
the state in the custody matter and of safeguarding the visitation rights
of the other parent.” 1980 Conférence de La Haye de droit interna­
tional privé, Enlèvement d’enfants, Replies of the Governments to the
Questionnaire, in 3 Actes et Documents de la Quatorzième session, pp.
85, 88 (1982). Such a description is inconsistent with the Department’s
current position that a ne exeat clause is a freestanding right of custody
within the meaning of the Convention. See Brief for United States as
Amicus Curiae 7.
Cite as: 560 U. S. ____ (2010) 21
STEVENS, J., dissenting
larly rich or illuminating.13 See Factor, 290 U. S., at 294–
295 (observing that “diplomatic history”—“negotiations
and diplomatic correspondence of the contracting parties
relating to the subject-matter”—is entitled to weight).
Finally, and significantly, the State Department, as the
Central Authority for administering the Convention in the
United States, has failed to disclose to the Court whether
it has facilitated the return of children to America when
the shoe is on the other foot.14 See Brief for United States
as Amicus Curiae 4, n. 3 (describing responsibilities of the
Central Authority). Thus, we have no informed basis to
assess the Executive’s postratification conduct, or the
conduct of other signatories, to aid us in understanding
the accepted meaning of potentially ambiguous terms. See
Zicherman v. Korean Air Lines Co., 516 U. S. 217, 227–228
(1996) (considering “postratification conduct of the con­
tracting parties”); Charlton v. Kelly, 229 U. S. 447, 468
(1913) (affording “much weight” to the fact that the
“United States has always construed its obligation” under
a treaty in a particular way and had acted in accord).
Instead, the Department offers us little more than its
——————
13 This only underscores what seems quite clear: Whatever contempo­
rary international consensus the Court claims has now emerged, “that
view was not generally formulated when the Convention was drafted in
1980.” Ante, at 14. I understand the Court’s reference to contemporary
consensus to depend on the views of contemporary scholars and indi­
vidual signatory states developed postratification, including the views
of the Special Commission, a voluntary post hac collective body with no
treaty-making authority, see ibid. Even assuming that the Court is
correct that consensus has emerged after the Convention was written
and ratified that ne exeat rights should be “rights of custody,” in my
view this provides no support at all for the position that the Conven­
tion’s drafters had these types of rights in mind and intended for the
Convention to treat them as rights of custody. To the contrary, I think
it tends to prove the opposite point.
14 This is somewhat surprising given that in 1999 the Department
made 212 outgoing applications for return of children to the United
States and made 85 such requests in 2003. Lowe Analysis 479.
22 ABBOTT v. ABBOTT
STEVENS, J., dissenting
own reading of the treaty’s text. Its view is informed by no
unique vantage it has, whether as the entity responsible
for enforcing the Convention in this country or as a par­
ticipating drafter. The Court’s perfunctory, one-paragraph
treatment of the Department’s judgment of this matter
only underscores this point. Ante, at 11–12. I see no
reason, therefore, to replace our understanding of the
Convention’s text with that of the Executive Branch.
Views of foreign jurisdictions. The Court believes that
the views of our sister signatories to the Convention de­
serve special attention when, in a case like this, “Congress
has directed that ‘uniform international interpretation’ of
the Convention is part of the Convention’s framework.”
Ante, at 12 (quoting 42 U. S. C. §11601(b)(3)(B)). This
may well be correct, but we should not substitute the
judgment of other courts for our own. See Olympic Air­
ways v. Husain, 540 U. S. 644, 655, n. 9 (2004). And the
handful of foreign decisions the Court cites, see ante, at
12–13, provide insufficient reason to depart from my
understanding of the meaning of the Convention, an un­
derstanding shared by many U. S. Courts of Appeals. See,
e.g., 542 F. 3d 1081 (CA5 2008) (case below); Gonzalez v.
Gutierrez, 311 F. 3d 942, 949 (CA9 2002) (parent’s right to
“refuse permission for his children to leave Mexico”
“hardly amounts to a right of custody, in the plainest
sense of the term”); Croll, 229 F. 3d, at 140 (“If we were to
enforce rights held pursuant to a ne exeat clause by the
remedy of mandatory return, the Convention would be­
come unworkable. . . . It does not contemplate return of a
child to a parent whose sole right—to visit or veto—impose
no duty to give care”); Fawcett v. McRoberts, 326 F. 3d 491(CA4 2003). Indeed, the interest in having our courts
correctly interpret the Convention may outweigh the
interest in having the ne exeat clause issue resolved in the
same way that it is resolved in other countries. Cf. Breard
v. Greene, 523 U. S. 371, 375 (1998) (per curiam) (“[W]hile
Cite as: 560 U. S. ____ (2010) 23
STEVENS, J., dissenting
we should give respectful consideration to the interpreta­
tion of an international treaty rendered by an interna­
tional court with jurisdiction to interpret such, it has been
recognized in international law that, absent a clear and
express statement to the contrary, the procedural rules of
the forum State govern the implementation of the treaty
in that State”).
I also fail to see the international consensus—let alone
the “broad acceptance,” ante, at 12—that the Court finds
among those varied decisions from foreign courts that
have considered the effect of a similar travel restriction
within the Convention’s remedial scheme. The various
decisions of the international courts are, at best, in equi­
poise. Indeed, the Court recognizes that courts in Canada
and France have concluded that travel restrictions are not
“rights of custody” within the meaning of the Convention.
Ante, at 13–14.
And those decisions supportive of the Court’s position do
not offer nearly as much support as first meets the eye.
For example, the English High Court of Justice decision
on which the Court primarily relies, ante, at 12, appears to
have decided a different issue. True, that court considered
the effect of a similar travel restriction on both parents
following the award of “custody” to the child’s mother. C.
v. C., [1989] 1 W. L. R. 654, 656 (C. A.). But the family
court had also decreed, at the time it awarded “custody” to
the mother, that both parents would remain “ ‘joint guardi­
ans’ ” of the child. Ibid. Moreover, in the time between
the mother’s removal of the child and the father’s petition­
ing for his return, the father had returned to the Family
Court in Sydney, obtained an order for the child’s return,
and received immediate custody of the child. Ibid. Com­
parable facts do not exist in this case. Cf. Olympic Air­
ways, 540 U. S., at 655, n. 9 (noting that “we are hesitant”
to follow decisions of sister signatory courts when “there
are substantial factual distinctions between” the cases).
24 ABBOTT v. ABBOTT
STEVENS, J., dissenting
Similar factual distinctions—involving, typically, joint
guardianship rights or shared decisionmaking rights—are
present in other of the foreign cases relied upon by the
Court and Mr. Abbott.15
Those foreign courts that have reached a position con­
sistent with my own, the Court is right to point out, have
also done so in slightly different factual scenarios. Ante,
at 13–14. The Supreme Court of Canada, for example,
first encountered a ne exeat provision as part of an interim
custody order in Thomson v. Thomson, [1994] 3 S. C. R.
551, 589–590, 119 D. L. R. (4th) 253, 281. Although the
Canadian high court concluded that a removal in breach of
the temporary travel restriction was wrongful, it empha­
sized the interim nature of the provision, see n. 9, supra,
and explained that the case would be different with a
permanent order. See Thomson, 3 S. C. R., at 589, 119
D. L. R., at 281 (“Such a [permanent] clause raises quite
different issues. It is usually intended to ensure perma­
nent access to the non-custodial parent. The right of
access is, of course, important but, as we have seen, it was
not intended to be given the same level of protection by
——————
15 See Bundesverfassungsgericht [BVerfG] [Fed. Constitutional Ct. of
Germany] July 18, 1997, 2 BvR 1126/97, ¶¶13–15 (considering ne exeat
provision with respect to a noncustodial parent who also had joint
authority to decide major life decisions for the child); M. S. H. v. L. H.,
[2000] 3 I. R. 390, 401 (Sup. Ct. of Ireland) (evaluating effect of ne exeat
provision when parents had shared “rights of parental responsibility,”
including “ ‘all the rights, duties, powers, responsibilities and authority
which, by law, a parent of a child has in relation to a child and his
property’ ”); Sonderup v. Tondelli, 2001(1) SA 1171, 1177–1178 (Consti­
tutional Ct. of South Africa (2000)) (evaluating removal where parents
were both granted “joint guardianship” of the minor); CA 5271/92
Foxman v. Foxman, [1992] §3(C) (Sup. Ct. of Israel) (examining
whether removal was wrongful in the context of a custody and visita­
tion agreement that provided broadly that “each parent needs
the consent of the other to every significant change in the children’s
residency”).
Cite as: 560 U. S. ____ (2010) 25
STEVENS, J., dissenting
the Convention as custody”).16 The Canadian Supreme
Court later affirmed this important distinction in D. S. v.
V. W., [1996] 2 S. C. R. 108, 139, 134 D. L. R. (4th) 481,
503 (rejecting argument that “any removal of a child
without the consent of the parent having access rights”
should authorize return remedy because such a reading of
the Convention would “indirectly afford the same protec­
tion to access rights as is afforded to custody rights”).
In sum, the decisions relied upon by the Court and Mr.
Abbott from our sister signatories do not convince me that
we should refrain from a straightforward textual analysis
in this case in order to make way for a “uniform interna­
tional interpretation” of the Convention. 42 U. S. C.
§11601(b)(3)(B). There is no present uniformity suffi­
ciently substantial to justify departing from our independ­
ent judgment on the Convention’s text and purpose and
the drafters’ intent.
V
At bottom, the Convention aims to protect the best
interests of the child. Pérez-Vera Report ¶25, at 432.
Recognizing that not all removals in violation of the laws
of the country of habitual residence are contrary to a
child’s best interests, the Convention provides a powerful
but limited return remedy. The judgment of the Conven­
tion’s drafters was that breaches of access rights, while
significant (and thus expressly protected by Article 21),
are secondary to protecting the child’s interest in main­
taining an existing custodial relationship.
——————
16 The Canadian high court also observed that construing a perma­
nent travel restriction on one parent as creating a right of custody in
the other has “serious implications of the mobility rights of the custo­
dian.” Thomson, 3 S. C. R., at 590, 119 D. L. R., at 281. A French
Court of Appeals made a similar observation in Attorney for the Repub­
lic at Périgueux v. Mrs. S, T. G. I. Périgueux, Mar. 17, 1992, Rev. cr. dr.
internat. Privé 82(4) Oct.–Déc. 1993, 650, 651–653.
26 ABBOTT v. ABBOTT
STEVENS, J., dissenting
Today, the Court has upended the considered judgment
of the Convention’s drafters in favor of protecting the
rights of noncustodial parents. In my view, the bright-line
rule the Court adopts today is particularly unwise in the
context of a treaty intended to govern disputes affecting
the welfare of children.
I, therefore, respectfully dissent.