Judges Must Avoid Imposing Their Own Cultural Preferences in Hague Convention Disputes.
Washington, May 17, 2010: Mr. Abbott, British, married, Mrs. Abbott, U.S. citizen, had a child, A.J.A., in Hawaii, and lived in Chile, where they got divorce. Under Chilean law, Mrs. Abbott received custody of A.J.A., and Mr. Abbott was granted the visitation with the right of stopping A.J.A. from leaving Chile without his permission (called “ne exeat”).
In violation, Mrs. Abbott removed A.J.A. from Chile to Texas, where Mr. Abbott (first through the State, and then the Federal Court for the Western District) sought to return A.J.A. under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the International Child Abduction Remedies Act (ICARA), back to Chile.
Neither the State, nor the Federal District Court in Texas, sided with Mr. Abbott, that the “ne exeat” is a custody right. The U.S. States Court of Appeals for the Fifth Circuit affirmed.
The United States Supreme Court in an opinion filed May 17, 2010, disagreed and reversed. The Court in its opinion noted that Mr. Abbott’s right to decide A. J. A.’s country of residence gives him rights to determine the shape of his early and adolescent years and his language, identity, and culture and traditions.
The Court found that few decisions are as significant as the language the child speaks, the identity he finds, or the culture and traditions she will come to absorb. The Court observed that “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. “