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The Supreme Court prevents forum shopping in international custody battles

by | Sep 4, 2010 | Child Custody, International Law |

In the recent Supreme Court case of Abbott v. Abbott, 130 S.Ct. 1983 (2010), the Court ordered a child returned to Chile. In this case, the mother had custody under proceedings in Chile and removed the child to the United States in violation of Chilean law. While the case is steeped in the language of international child custody disputes (Hague Convention, right of ne exeat, etc.) the decision prevents forum shopping in international custody disputes. Forum shopping is the idea that a litigant can control the orders of a court by moving from one country (forum) to another. For over thirty years, the United States has had laws that prevent moving from state to state for forum shopping (Parental Kidnaping Prevention Act and Uniform Child Custody Jurisdiction Act). This decision reinforces the concept that the United States will return children to foreign countries if they are removed in violation of the law of the foreign country.

In the Abbott case, the mother argued that since she had custody, she could remove the child without permission of the father of the child or a court. Even though the father did not have custody, under Chilean law, he had the right to prevent the child from being removed from Chile. This right to prevent removal, called ne exeat, was sufficient to cause the Supreme Court to return the child to Chile.

This decision should prevent future attempts to remove children and bring them to the United States. The predictability of a return of the child should prevent removal from occurring.

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