I almost start a mini press riot today at the Supreme Court, so certain am I that Justice Clarence Thomas is about to ask a question for the first time in nearly four years. In a case about indefinite detention for sex offenders, he summons someone to bring forth a law book; he puts on his glasses and reads carefully from the book, then leans forward toward the microphone. To his left, Justice Stephen Breyer looks at him expectantly. I nudge my colleagues on either side and hiss, "He's gonna do it, he's gonna do it." We all start craning and gaping. And then Thomas, who hasn't asked a question at oral argument since Feb. 22, 2006, takes off his glasses, tips his head back up against his headrest, and closes his eyes.
Among the other things that don't happen today at the court is the announcement of the long-awaited decision in Citizens United v. Federal Election Commission, the campaign-finance case so long delayed that the press office has come to look like a giant labor and delivery ward. Everybody paces around and makes small talk and then paces around some more. TV cameras stand, denuded of their reporters, in front of the court building. "What's taking so long?" we ask ourselves, "What's taking so long?" Then we, too, tip our heads back and close our eyes.
In the midst of all this high-stakes resting, the court hears Abbott v. Abbott, a rare family-law case involving an American child taken to Texas from his home in Chile by his mother, without his father's consent. Under the 1980 Hague Convention on the Civil Aspects of Child Abduction, children must be automatically returned to the country from which they are taken, so long as the removal was "in breach of rights of custody." The Supreme Court thus needs to sort out whether the father, Timothy Abbott, had a "right of custody" under the treaty, because at the time of the divorce the Chilean family court entered what's called a "ne exeat" order prohibiting either parent from removing the child from the country without the consent of the other.
Listening to the justices argue over an international child-custody case is a bit like watching them ride the mechanical bull. They aren't experts, but they're ever so willing to go down trying.
Amy Howe represents Mr. Abbott, the dad, who was granted "direct and regular" visitation rights with his son by the Chilean courts, while his wife was given the child's daily care and control. His ex wife was unable to work in Chile, and Abbott got behind on his child-support payments. So she took the boy to Texas without Dad's consent, and then Dad sued in the Texas courts, seeking to have the boy returned to Chile. He lost at the trial court and again in the 5th Circuit Court of Appeals. There is a division between several appeals courts about whether a ne exeat order creates a custody right for Hague Convention purposes. The 2nd Circuit, for instance, recently said it does not, with then-Judge Sonia Sotomayor dissenting.
Howe opens by explaining to the justices that "the Hague Convention exists to ensure custody disputes are resolved by the courts of the country of habitual residence rather than through abduction."
This seems entirely reasonable until Justice Breyer asks a hypothetical question that he will pose several times today: "Imagine a well-educated American woman marries a man from a foreign country X. They have a divorce. The judge says the man is completely at fault here, a real rotter. The woman is 100 percent entitled to every possible bit of custody and the man can see the child twice a year on Christmas Day at 4:00 in the morning." (Erm. Isn't that once a year?) Breyer goes on, "Now, there's a law like Chile's that says you can't take the child out of the country without the permission of the father, too, this person who gets to see the child twice a year. And you are saying that's custody? She can't get a decent job worthy of her education. … She has to choose between her life and her child?"
Sotomayor suggests Mrs. Abbott could have just gone to the Chilean court and asked for a modification of the custody agreement. Then Justice Ruth Bader Ginsburg asks, "What happens to the woman who has abducted the child to Texas, and she says to the Texas court, 'If you send me back, I am going to be beaten by this man?' "
Howe replies that the convention doesn't permit the return of the child if the courts in the country of refuge determine "the child would face either a grave risk of physical or psychological harm." Chief Justice John Roberts then wants to know if the treaty also protects against possible harm to the mother. No, it's focused on harm to the child. Asks Roberts: "So the woman … if she wanted to remain with the child, there would be no protection. She would have to choose between subjecting herself to violence or being apart from the child?"
Breyer says his mind is "in equipoise" on this whole question. Ginsburg can't understand why the convention expressly distinguishes between "the rights of custody and the rights of access," if they both actually amount to a right of custody. Justice John Paul Stevens is equally skeptical: "Does your argument really boil down to the claim that this was, in effect, joint custody? It seems to me it clearly was not."