The Fifth Circuit has followed the Second Circuit's ruling in Croll v. Croll and has ruled that a "ne exeat" right does not constitute a "right of custody" for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. (Abbott v. Abbott, handed down on 9/16/08).
The case concerned a British father and American mother who lived with their child in Chile. When the parents separated the Chilean courts awarded sole custody to the mother with visitation rights to the father and entered a subsequent order (the “ne exeat order”) prohibiting the child's removal from Chile by either parent without their mutual consent. The mother concededly breached that order by taking the child to Texas and keeping him there without the father's consent and without notice whilst the parties were in the midst of disputes over visitation and other issues. The Hague Convention provides the remedy of return of a child only if the child's removal or retention from its habitual residence breached “rights of custody attributed to a person.” The Fifth Circuit was required to determine whether to follow the three federal appellate courts that have determined that ne exeat orders and statutory ne exeat provisions do not create “rights of custody” under the Convention (Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133, 138–39 (2d Cir. 2000)) or whether to follow the Eleventh Circuit which has reached the opposite conclusion. (Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir. 2004)). The Eleventh Circuit's view has received further support in the First Circuit in Whallon v. Lynn, 230 F.3d 450, 458 n.9, 459 (1st Cir. 2000) and Croll has been criticized in most of the academic literature.
The Fifth Circuit also noted that the Furnes court had “catalogued” the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion. Furnes, 362 F.3d at 717–18.
The decision of the Fifth Circuit is that it follows the majority rule. It held that:
“We find persuasive Croll's reasoning that the Hague Convention clearly distinguishes between “rights of custody” and “rights of access” and that ordering the return of a child in the absence of “rights of custody” in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. We hold that ne exeat rights, even when coupled with “rights of access,” do not constitute “rights of custody” within the meaning of the Hague Convention. The Hague Convention provides a remedy of return only for a parent who holds “rights of custody.” The father in this case did not hold such rights."