Will the Supreme Court (Indirectly) Review Another Sotomayor Opinion?

[usregimechange]

Today the government is filing its brief in No. 08-645, Abbott v. Abbott, in which the Court called for the views of the Solicitor General in January. At issue in the case, in which we represent petitioner Timothy Abbott, is whether a ne exeat clause – which prohibits one parent from removing a child from the country without the other parent’s consent – constitutes a “right of custody” for purposes of the Hague Convention on International Child Abduction. In her brief, the Solicitor General opines that the Fifth Circuit erred in holding that a ne exeat clause is not a right of custody, and that certiorari should be granted.

If the Court were to grant certiorari in Abbott, it would have before it – albeit indirectly – yet another of Judge Sotomayor’s opinions. The Second Circuit was the first court of appeals to consider this question, in Croll v. Croll, 229 F.3d 133 (2000), cert. denied, 534 U.S. 949 (2001). In that case, the panel majority held that a ne exeat clause was not a right of custody for purposes of the Hague Convention. Judge Sotomayor wrote a dissenting opinion indicating that she would have held – as the Solicitor General now argues – that the ne exeat clause constitutes a right of custody.

More:
http://www.scotusblog.com/wp/invitation-brief-in-no-08-645-abbott-v-abbott-will-the-supreme-court-indirectly-review-another-sotomayor-opinion/

[LiberalFighter]

1. Could someone explain this in layman's terms?

[insanity]

2. I can try:

The issue the Court would be hearing in Abbot (if they decide to hear it) is if the law which prohibits one parent from taking a kid out of country without the other parent's consent constitutes a right of custody as defined by the Hague Convention. This same issue came up to the Second Circuit in an earlier case, Falkirk v. Falkirk, which ruled that it is not a right of custody (the 5th Circuit decided the same in Abbot), but Sotomayor dissented and it is her opinion that the Solicitor General argues was correct.

So it is possible Sotomayor may vote to make her dissenting opinion the precedent.

[LiberalFighter]

3. Still confused.

If it is a right of custody for a parent under the Hague does that mean the parent has the right to remove the child from the country?

Was she supporting a parent's right to take the child out of the country or that the parent could not remove the child from the country?

[insanity]

5. The ruling that it was not a parental right under the Hague

The reason why it matters is if a parent does that (takes their kid out of the country without consent) then their is no legal remedy for the other parents under the international child abduction law (which I believe is a confirmed treaty i.e. law of the land). Sotomayor argued in her dissension that the right to withhold consent is a enough of a right to have remedy under those laws.

[dkf]

4. What does the Hague convention have to do with US custody rights?

We don't have our own laws?

[insanity]

6. We do, but this seems like a technical legal arguement:

Do parents have a legal remedy under the Hague Convention on Child Abduction which is (I think) the law of the land if a parent takes their child off the another country without their consent.

[LiberalFighter]

7. It's no different when a parent wants to move to another state they need permission from the court

Even moving within a state can be stopped if it is considered too far and for the wrong reasons.

Then there is the issue of visitation being modified if the move is granted by the court.