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Judge Sotomayor and the Hague Convention

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I've been pretty detached from mainstream news for a while now (I tend to feel disgusted watching them talk about trivialities when I know how many children are abducted everyday..) though I regularly monitor sites with anything related to international child abduction or the Hague Convention.  Today I read about Judge Sotomayor whom, as many probably know, has been appointed by Obama to the US Supreme Court pending confirmation.  I read a little about her bio and her background impressed me... ie a hispanic woman from the bronx that grew up in a poor family to now be appointed as a supreme court justice.  As a federal appeals judge she decided on a Hague case that concerned a child of divorced parents who lived in Hong Kong. The mother had sole custody of the child and the father had "reasonable access."

The mother took the child to New York, and the father filed a petition for return of the child to Hong Kong. A custody order said the child could not be removed from Hong Kong without the consent of the father or the Hong Kong court, and the case centered on whether this clause confers "rights of custody" under the Hague Convention on International Child Abduction. If it did, it would require the child's return to Hong Kong.

On appeal, the court ruled the removal was not wrong because the father did not possess rights of custody. In her dissenting opinion, Judge Sotomayor argued that a broader interpretation of "custody" was more in line with the "object and purpose" of the Convention, and that this was how foreign courts had considered the issue.

I am of the strong opinion that Judge Sotomayor, in at least this case, made the right decision.  The question in this case, Croll v. Croll, is now before the Supreme Court in Abbott v. Abbott.  I have mentioned the Abbott case on this site before, but its synopsis from is:

Synopsis: While living in Chile, a British citizen and his wife, a U.S. citizen, separated and various orders were entered in Chilean family courts regarding the custody of their son including direct and regular visitation rights to the father, including a month in the summer. Both parents were prohibited by statute and court order from removing the son from Chile without notifying the other and obtaining written authorization from the court. The wife subsequently took the couple’s son to Texas where the father located them four months later through a private investigator. In a federal district court suit in Texas, the wife conceded that her removal violated Chilean law but the court concluded that “the removal was not “wrongful” within the meaning of the Hague Convention because petitioner’s ne exeat right did not constitute a right of custody under the Convention.” The Fifth Circuit affirmed. The issue presented to the Supreme Court by petitioner is as follows:

The Hague Convention on International Child Abduction requires a country to return a child who has been “wrongfully removed” from his country of habitual residence. Hague Convention art. 12. A “wrongful removal” is one that occurs “in breach of rights of custody.” Id. art. 3. The question presented is: Whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction.

If the federal appeals court decision in Abbott vs Abbott is not overturned than any Chilean mother (or other parent from a country with custody laws similiar to Chile) may abduct children to the US without repercussions and we will be the haven for international child abductors.  It's worth also mentioning that the Chilean Central Authority (they are also Hague signatories) informed the US courts and OCI that under Chilean law the father had full rights as a father and had legal custody as pertains to the Hague Convention, but the US courts decided they knew Chilean law better than Chile.   The Permanent Bureau of the Hague Conference on Private International Law – which is responsible for monitoring the implementation of the Convention – even filed an amicus brief supporting the appeal.  

It's nice to know that Obama's appointee got this point right... even if I know nothing else about her :)

Barack...he should go down there...all he'd have tp say is "uhh...look...Seans coming back with me"


--- Quote from: dmdaven2;22807 ---Barack...he should go down there...all he'd have tp say is "uhh...look...Seans coming back with me"
--- End quote ---

"Now Lula, LET ME BE PERFECTLY CLEAR.. Sean's coming back with me".. hahaha
Love that man  

To bad she isn't on the court now.  Abbott v Abbott need to be overturned.



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