Photo of Linda SilbermanLinda Silberman’s article, “The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues,” which originally appeared in the NYU Journal of International Law and Politics in 2000, was cited by Associate Justice Anthony Kennedy in the Supreme Court’s May 17 decision in the case Abbott v. Abbott.

The question raised in Abbott v. Abbott was whether a father’s ne exeat right— the right to prevent a child's departure from the country—constitutes a “right of custody.” In this case, a divorced mother moved her child to the United States from Chile without the father's consent. He sued, and lost in the U.S. Court of Appeals for the Fifth Circuit, which ruled that the ne exeat right was not a right of custody. The Supreme Court, however, reversed the decision in a 6-3 ruling, ordering that the child be returned to Chile.

In his opinion, Kennedy writes that many scholars agree that the emerging international consensus is “that ne exeat rights are rights of custody, even if that view was not generally formulated when the [Hague Child Abduction Convention] was drafted in 1980.” Citing Silberman, among other scholars, Kennedy goes on to write that joint custodial arrangements are more common and ne exeat rights are better understood 30 years later, and that most states in contract with the Convention now recognize “that ne exeat are rights of custody.”

Posted May 18, 2010