Jan 9, 2009
Abbott v. Abbott, Supreme Court to Consider International Child Abduction
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By: Luke Gilman | Other Posts by Luke Gilman Go to Comments | 13 Comments |
The Supreme Court is considering a case on whether a violation of a ne exeat clause (prohibiting one parent from removing a child from the country without the other parent’s consent) is a “wrongful removal” under Hague Convention on International Child Abduction.
We’ve added a new Subject Briefing with updates an analysis: Abbott v. Abbott (international child abduction)
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This case bothers me profoundly and I hope the Supreme Court does the right thing in ordering the return of the child. It is not for a US court to interpret Chilean law in a manner that contradicts the interpretation of the Chilean Central Judicial Authority, especially when their interpretation means that any Chilean mother can kidnap a child to the US with impunity. We should not be a haven for Chilean mother’s that wish to abduct their children. I am the father of an internationally abducted child and aside from the fact that I feel that this is morally wrong on its face, it has the potential of making it harder for me and other left behind parents to get our children back if the US doesn’t consistently return children abducted from other countries.
Thanks for taking the time to comment. I posted on a similar case yesterday in International Child Abductions and the Best Interests of the Child. Unfortunately, I think we’ll continue to see this problem for a long time to come both in the United States and elsewhere.
Carlos, In some very rare instances US courts do not order return of abducted children. I am a father of 2 children abducted to Poland (11 years ago), and I can tell you that US is at the top Hague Convention compliance. It would be foolish for this court to allow abducted children to be kept. In this country child abduction by a parent is illegal (unlike in Poland for example).
One of the biggest hypocrites are the socialist of EU. Did you know that Germany, Switzerland, Poland, Sweden are as bad in Hague Convention enforcement as lawless Mexico or Uruguay? Yeah, European countries notoriously brake Hague Convention law when children are abducted from US or Canada, yet they demand enforcement of the law, when somebody does it to their children. Keep faith, and don’t give up.
I am the father and had sole custody of Alexander WATKINS (7 yrs) and Christopher WATKINS (4 yrs) but they were abducted by my ex-wife, Edyta ( Ustaszewski ) Watkins, and her father, Thaddeus (Ted) Ustaszewski, during the weekend of March 6th 2009, on a Court Ordered access visit. Edyta’s father, their maternal grandfather, Thaddeus (Ted) Ustaszewski had driven Edyta and my children across the border at Buffalo N.Y. on Sunday March 8th, and that she and the boys had flown from Rochester N.Y to Germany via Detroit while Thaddeus (Ted) Ustaszewski returned back to Canada. Members of her extended family who reside in Chicago have confirmed that Edyta and my boys are now in Poland where she was born and still has family. More information can be found on our website here: http://watkins-missing-children-contact-us.blogspot.com/
I don’t know if it is possible but I would like to connect with your last commentator (Bogdan) to hear some of his experiences with dealing with the country of Poland.
It seem with the latest issues of the “Good Practice Report on Enforcement Under the Hague Convention” there are a handful of countries that do not reciprocate the return of children under the Signed Hague Treaty. Poland is one of these countries named in the report which has got me very worried. It seems a lille like “Smoke and Mirrors” that countries would sign a treaty expecting to have there habitual children return but not offer the same courtesy. This being the case, every country should do its best to follow the Hague procedures. I agree with Carlos statement that if all countries (in this case) “doesn’t consistently return children abducted from other countries… it has the potential of making it harder for me and other left behind parents to get our children back”.
Being part of the Hague Treaty is NOT about custody trials and deciding what’s best for the children AFTER they have been abducted. Its not up to the abductor or the country which the abductor has run off to decide.
The Hague Treaty is about sending the children back home to their habitual country of residence as soon as possible so that those issues can be addressed locally, where most likely it has already done so through court procedures, which one parent decided they did not agree.
Unfortunately, it seems as though due to the set-up of Judicial Systems in every country is different, there seems to be a disconnect between their Central Hague Authority and their Judicial systems. They don’t communicate with one another making the return of the children more difficult. The Hague should address this issue in some of their reports.
As Bogdan said, I won’t give up…
I hope Poland has changed its procedures over the years and reciprocates the return of children. In respect, I hope Canada also respects the treaty and also follows suit. Time will tell and My fingers are crossed…
I love my boys and they probably feel lost in a country they have never been.
Children need BOTH their Mom & Dads.
Does anyone think the wife should keep the kid?
The problem is that the only avenue through which a petitioner, being that party which challenges the removal of the child, has to require the return of the child is through the Hague treaty. Unfortunately the Hague Treaty creates a great distinction between the “right to custody” and the “right to visitation.” What this means is that while the petitioner may have the right to visit the child for a limited period of time, the person awarded custody has the actual ability to determine what is “best for the child.” This right includes the determination of where the child should live. Even though countries ne axeat laws may award the petitioner the right to veto the custodial party’s choice of location, if they challenge in a foreign country based upon the Hague Treaty they will not be granted the power of return without evidence showing that they were given the rights of custody for the child. In the case of Abbot v. Abbot the father was given visitation rights by the Court of Chile but was not awarded custodial rights. The ne axeat law did award him veto power to deny the mother’s choice of location based on the convenience of visitation rights. However his only avenue to challenge her residing with the child in Texas is through the Hague Treaty and based upon this treaty he was never awarded custodial rights by the Chilean Court, making a legitimate order of removal by the court illegitimate under the Hague Treaty. The only realistic and legal option for the petitioner is for the Chilean government/court to call back Ms. Abbot and process her in court under the ne axeat law which she admittedly violated.
What about the wife? Do you think she should keep the kid? If so, why?
The notion that a court can determine the best interest of a child is a logical fallacy. In a scenario where two fit parents desire to have at least equal access to their children, they should be guaranteed equal access as a right by law. A parent who removes a child to a location away from the other parent without the other parent’s consent should be deemed to have broken a law and should serve time in prison.
I pray that Mr. Abbott finds his sons safely returned to Chile, and that the Chilean Courts find a way to overcome the common gender stereotypes that still exist almost everywhere in the world. The Chilean Court should grant both he and his ex-wife joint legal and physical custody. She should serve a year in prison for child abduction. The year in prison, of course, should be spent only on her weekends without the child, for as long as it takes to complete, to prevent the child from being adversely affected.
Why should women fight to abolish gender prejudice in the family courts? Well, women will never achieve their objectives of equality of opportunity and pay in the workplace until they are released from the disproportionate burden of child rearing. The laws, made by mostly men, are content with the notion that women should carry the primary responsibility for raising children. Women, wake up, this is no accident. As long as you remain responsible for the children, you will always remain financially less impotent.
Why should minorities fight to abolish gender prejudice in the courts? We all recognize that absentee fathers create children who will almost certainly have drug, alcohol and issues, as well as issues with the law. As we also know, minority children in the inner cities suffer the greatest from absentee fathers. So, why are we surprised that the white men who right the laws, and sit on the benches, are content to turn a blind eye to the daily discrimination men face in the family court system? A unofficial policy that keeps women and minorities less economically impotent is to the white man’s advantage.
Not until women and minorities make their voice heard with regard to the impact on their population segment of the discriminatory child custody laws and family courts, will they have a chance of achieving equality with white men.
Anyone care enough to organize a formal protest against family court and the gender discrimination? If so, i’m intersted in hearing from you.
To Steven Watkins:
I am sorry I didn’t answer find your question sooner. Anyway, Polish and most of the European socialist courts have a lousy record track on Hague Convention compliance. You can read State Department annual compliance reports and they prove that Poland, Germany, Sweden, Switzerland, France are almost as bad as Uruguay or Mexico. International abductions are treated by most of the courts as regular custody cases, even though the law of the Convention is very clear on the subject. Opinion of 4-5 years old children are regularly being taken into consideration to deny the return (an obvious excuse).
Local press is usually involved in playing the “national” card to pressure the judges, and let’s not forget about how most of the EU judges get their jobs or get promoted: bureaucrats in the governments decide which judge “deserves” the promotion. I would dare to say, that there is little or no difference between the so called “independence” of a judge from Poland or Germany, and one from Iran, Iraq, or Brazil. If any of them have ANY aspiration to go higher in court hierarchy, they have to play “nice”.
I compare my case with the recent one from Brazil, which received so much publicity few weeks ago. Both foreign governments and their judicial branches basically play the United States, pretending that ONLY the judicial “independent” (from any external pressures) branch was responsible for the obvious unlawful retention of the children. There was only one difference , in Brazilian case the US government high ranking officials (Hillary Clinton), and few congressmen decided to play hard ball: no children, no $2.5 bln of duty-free export to U.S. Notice, the immediate “involvement” of the Brazilian Supreme Court Chief Justice, who reversed the original ridiculous stay order…. No such decisive action with Poland or any other EU countries or Mexico were EVER taken.
Different governments, same low ranking officials playing the same game of incompetence. I wrote so many letters to American and Polish officials (presidents including), and all of them ended up on desks of the same two law ranking bureaucrats in Washington, or Warsaw…. for all 12 years. Funny, ahh?
I can tell you this: one piece of American legislation would put an end to the international abductions from this country: any country that has ANY outstanding case of abducted child should automatically loose its most favorite trading partner status, with punitive duties and travel restriction penalty “enhancements”, until the US State (not the Commerce, nor Defence) Department recertifies the Hague Convention compliance. Simple, but effective.
I would be willing to bet, that the compliance for all of these countries would dramatically improved over night.
I actually started believing that their job depend on keeping the status quo. My children were abducted in 1998 (Bill Clinton administration), and know we are one year into Obama term. Has anyone notice any changes over last 12 years? I have not. Same feel good meetings with left behind parents (there is new one in SF this Thursday), but no real progress.
Poland still violates the Hague Convention, as it did 12-10 years ago, I didn’t have any contact with my children for almost 11 years, but US government donated billions of dollars military and economic assistance to the Polish government. Does anyone blame the other side for not trying to fix their mess?
People in America need to understand one thing: children are a very popular political platform for all politicians from left and right. All of them care about “children” who are almost 25 years old, or got to this country illegally, but … when it comes to American citizens who were abducted when they were 2,3 or older … NOBODY cares. You have an army of prosecutors in foreign countries (even in communist China) protecting interests of Hollywood, but it IS still legal to abduct a American child, keep it in hiding in Poland, even after an order to return him/her has been issued by Polish court. Total joke.
Oh… one more thing. Once the foreign governments refuse to return your abducted child, expect a letter from your local county or state Child Services trying to enforce child support orders of the same courts, which not so long ago showed American judicial system the middle finger. Luckily, there is little chance for them to succeed, but still… the audacity.
So Steven, do you still wonder how I feel about Poland and its judicial system …?
To webmaster of this site: I just received notifications about last 3 postings dated Dec 10th 2009. There is SOMETHING wrong with our notification system. It took almost a month to deliver them to my email box: kind of slow, don’t you think? :-)
The wifes Visa card expired. She had to leave.
To: JMN,
There is already a group of serious people trying to change the laws in the US to be more equal regarding child custody. Try googling Fathers and Families, GlennSacks.com, Mens News Daily, and Stand Your Ground for the main organs of the fathers rights movement in the US. Join and participate in this important political movement.
Using what I learned from other men on these sites, I got 50/50 physical custody, avoided having my son kidnapped to Brazil and now I enjoy full custody as my ex (200K in legal fees later) moved to another state with her new husband.
I think she should keep her son. Interesting title for your blog, it assumes malice on her part, not allowing for the possibility that she was removing him from a unfavorable situation.
The child should be returned to Chile and the wife should be tried for violation of the Chilean court order. And the wife’s violation of the court order should be a weighty issue when the custody rights are re-considered.