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. Abbott 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 considered 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 [theretofore] 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 Convention 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.
