In Abbott, the Supreme Court decided that ne exeat rights granted under Chilean law amounted to a right of custody in the child’s father, who remained in Chile after the custodial mother removed the child to the United States.  A ne exeat right grants a non-custodial parent the right to consent before the other parent may take the child to another country.  This decision resolved a conflict among lower federal courts as to whether removal in violation of a ne exeat right was wrongful under the Convention.  Mr. Abbott, who resided in Chile and had visitation but no formal custody rights over the child, sought a return order in the United States after Mrs. Abbott took the child from Chile without his consent.  To resolve this question, the Supreme Court analyzed the text of the Convention, considered with great deference the views of State Department, and also relied on decisions in foreign courts addressing similar issues.  In a strong dissent joined by Justice Thomas and Justice Breyer, Justice Stevens argued that the Supreme Court’s decision essentially eliminated the careful distinction in the Convention between rights of custody (granted to Mrs. Abbott under Chilean law) and mere rights of visitation (granted to Mr. Abbott under Chilean law).  Moreover, as the dissent pointed out, while deference to the executive branch on issues affecting foreign relations may be appropriate in some cases interpreting international obligations, in this case, the newly “found” position of the State Department on this issue was simply not entitled to the weight accorded to it by the majority.  Finally, the dissent brought to light one of the key issues in referring to foreign court decisions to interpret treaty language:  the ability of judges to pick and choose among those decisions to find ones support their interpretation.  As Justice Stevens wrote, “[t]he various decisions of the international courts are, at best, in equipoise. 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.”  130 S. Ct. at 2009.

If Abbott points out some of the substantive difficulties in interpreting and applying the Convention, the Supreme Court’s 2013 decision in Chafin highlights equally some of the procedural hurdles that litigants must face in enforcing Convention rights.  Chafin involved a complicated divorce and custody dispute between an American soldier stationed in Alabama and his estranged wife, living in Scotland.  Their daughter, who remained in Alabama after Mrs. Chafin was deported back to the United Kingdom, was the center of the dispute.  Mrs. Chafin initiated proceedings in federal court in Alabama under ICARA to seek return of the child to Scotland, ultimately obtained a return order and the child was immediately removed to Scotland.  Mr. Chafin first attempted to stay enforcement of the return order, which was denied, and then appealed the district court’s decision to grant the return order, as well as a decision imposing costs and attorneys’ fees on him.  Mrs. Chafin sought to have the appeal dismissed as moot on the grounds that even if the court of appeals found that the return order was improperly granted, the courts were powerless to effectuate any remedy because the child was no longer within the jurisdiction of the United States.   Writing for the Court’s unanimous decision, Chief Justice Roberts succinctly wrote that “[t]his dispute is still very much alive.”   133 S. Ct. at 1023.   The fact that Scotland may not recognize or enforce a “re-return” order to the United States did not negate the fact that the parents continued to vigorously dispute the custody and residence of the child, and that Mr. Chafin continued to challenge the imposition of costs and fees under ICARA.  In reaching this conclusion, the Supreme Court was also concerned about the practical impact of a rule that would moot all appeals of return orders where the child has already been returned to another country at the time of appeal.  As the opinion noted, such a rule would have the effect of increasing the number of stays granted pending appeal to keep the child in the United States throughout the litigation, which would undermine the goal of prompt return contemplated under the Convention.  Even worse, warned the Court, “[a] mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case.”   133 S. Ct. at 1027.

As Abbott and Chafin indicate, private international disputes involving family matters raise substantial issues relating not only to the interpretation and implementation of treaty obligations in the United States, but also as to the sources of authority in establishing the contours of private international law and the practical impact of domestic procedural law on the ultimate goals of the Convention.