Child custody treaty case splits Supreme Court on new lines
May 18, 2010
The U.S. Supreme Court has decided the Hague Convention case of Abbott v. Abbott, on whether a foreign law, or order, barring a custodial parent from moving a child out of the country, gives the non-custodial parent “rights of custody” that are protected by the Convention. I.e., if a custodial parent in that situation violates the home country’s law, or court order, by moving their child to the U.S., without the permission of the other parent or a local court, can the other parent use the Hague Convention to have the child ordered back to the other country? The Supreme Court says yes.
This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.
What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations.
The other notable thing about this case was how the Justices lined up on it. At oral argument, Justices Sotomayor and Scalia led the charge for the more modern, expansive, plural view of custody rights, with some apparent support from Roberts, and Breyer and Stevens energetically pressed the unitary view. Justice Ginsburg seemed to be on the unitary side, and wanted it known that the 1980 treaty was from the golden age of feminism, and was intended to protect custodial mothers against abduction by non-custodial fathers. However, the father’s lawyers replied that the treaty specifically provides that custody rights may be joint, that it is from a time when joint custody was already becoming popular in the U.S. and other countries, and that it deals with abduction at many points in a family’s history, from the time of initial separation to long after a divorce. In the end, Justice Ginsburg joined Justice Kennedy’s majority opinion, and the dissenters were Justice Stevens, who wrote the dissent, Breyer and Thomas. As a family lawyer I am not a great student of the Supreme Court, but this is the only opinion of theirs I remember reading that has a dissent but no concurrences, separate dissents, etc.
This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.
What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations.
The other notable thing about this case was how the Justices lined up on it. At oral argument, Justices Sotomayor and Scalia led the charge for the more modern, expansive, plural view of custody rights, with some apparent support from Roberts, and Breyer and Stevens energetically pressed the unitary view. Justice Ginsburg seemed to be on the unitary side, and wanted it known that the 1980 treaty was from the golden age of feminism, and was intended to protect custodial mothers against abduction by non-custodial fathers. However, the father’s lawyers replied that the treaty specifically provides that custody rights may be joint, that it is from a time when joint custody was already becoming popular in the U.S. and other countries, and that it deals with abduction at many points in a family’s history, from the time of initial separation to long after a divorce. In the end, Justice Ginsburg joined Justice Kennedy’s majority opinion, and the dissenters were Justice Stevens, who wrote the dissent, Breyer and Thomas. As a family lawyer I am not a great student of the Supreme Court, but this is the only opinion of theirs I remember reading that has a dissent but no concurrences, separate dissents, etc.
Touche. Sound arguments. Keep up the amazing effort.
Posted by: Donovan B. McWilliams | September 16, 2013 at 11:05 AM
And this is just one of the most informative blogs I ever stumbled into. Anyway, good job on writing this, I will surely come back for my research and I have learned so much.
Posted by: Northern Kentucky Attorneys | January 16, 2013 at 05:03 AM
After read a couple of the posts on your site these few days, and I really like your style of blogging. I added it to my favorites internet site list and will be checking back soon.
Posted by: scm | April 21, 2011 at 02:27 AM
I hope you continue doing what you do because it's so good!
Posted by: F Horn | April 21, 2011 at 12:45 AM
Putting this on filed documentation ca be really necessary.
Posted by: sedona tours | February 23, 2011 at 01:32 AM
A very critical case. This has to be one of the cases that can be written on the history books.
Posted by: Family Law Lawyer Los Angeles | November 15, 2010 at 01:32 PM