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."
Ginger Anders represents the United States, which has come into the case on the father's side. She has 10 minutes to argue, and she urges that the Abbotts' custody arrangement was a modified form of joint custody. Stevens again points out that this just ain't no joint custody decree: "The decree says the mother is the one who has custody."
Breyer repeats his first hypo, describing the imaginary father as "Frankenstein's monster." How can the Hague Convention possibly contemplate giving that guy "custody"?
Sotomayor reminds her colleagues that "the purpose of the convention is which court will decide the life of that child." Roberts asks what happens "if you have the mother taking her daughter from, say, a country where she would be forced to be raised under sharia law—is it up to that country to decide whether the child has to be returned?"
Karl E. Hays has 30 minutes to represent Mrs. Abbott. He opens by saying that "rights of custody and rights of access are very different and distinct substantive rights." Mr. Abbott had a right of access to his son. But it just wasn't custody.
Ginsburg tells him his client did not in fact have full custodial rights since she was barred "from taking the child out of the country." Hays replies that this was a "limit on her custodial rights" but not a grant of custodial rights to the father. Justice Anthony Kennedy calls that a "slightly artificial approach." Ginsburg adds that if the father "has the right to say no, don't take the child out of the country, then he has something more than a right of access."
Stevens asks whether the mom could have picked any residence she wanted so long as it was in Chile? Yes, says Hays. Then Justice Samuel Alito shoots back: "Which is more important, determining the house in which the child is going to live or determining the country in which the child is going to live?"
Justice Antonin Scalia, sentinel of international law, points out that most of the 81 countries that have signed the Hague treaty have agreed that a ne exeat right is also a right of custody. Hays replies that the United States and Canada have gone the other way, though. And Scalia chuckles, "You're writing our opinion for us, are you?"
Scalia adds that the countries that have found a right of custody "include some biggies, like the House of Lords, right? And since the purpose of a treaty is to have everybody doing the same thing, we should try to go along with what seems to be the consensus in other countries that are signatories." Then everybody sort of throws down over whether Hays can score what might be dicta from the Canadian courts on his side of the balance sheet and what one is to do with an opinion from Australia. They agree to split France down the middle.
Stevens asks whether the child is old enough to decide these issues for himself. (He's 14 and a half.) Then Breyer asks why Mrs. Abbott didn't just ask the Chilean court for permission to leave Chile in the first place. Hays replies, "I don't know."
The most interesting thing about this morning's argument in Abbott v. Abbott is that it breaks down all the normal divisions on the court: left versus right, women versus men, pragmatists, internationalists, textualists, idealists … all of it flies out the big ornamental doors as the court grapples with this new problem of international child abduction at the grittiest, most practical level. It feels nice. Less an ideological smack down than a good, old-fashioned family argument. I wouldn't get too used to it. But I enjoy it while I can.