Child custody treaty case splits Supreme Court on new lines
May 18, 2010
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.
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