Wednesday, March 14, 2012

Another Attempt by a Judge to Short-circuit Custodial Law

Once again we see the courts short-circuiting the original intent of The Hague Convention which was to protect the rights of custodial as well as non-custodial parents to have access to their children.

Not that I agree with the gender-neutral intent of that convention. It was, as every gender neutral public policy on custody matters is, just another of the sick attempts by men and their gender neutral feminist allies to undermine mothers natural rights to our own children.

But if you are going to have these laws why not enforce them?

This way everyone knows what to expect and you'll have less abductions by parents.

As I see it, most of the problems regarding custody issues today stem from Judges not enforcing the laws as they are written; but, instead substituting their own opinion on these issues.

Remember this could have been a woman in this situation.

Actually as Richard Gardner (the patron saint of the father's rights movement) noted he thought fathers were more likely to try to alienate a child's mother, if the father had custody then the other way around...and this man had his own family practice so saw this every day of the week.

Mothers have to be careful not to support this woman in the story w/o knowing all the facts.

Just saying...

Child at center of high court fight over custody gets closure
By Bill Mears, CNN Supreme Court Producer
updated 1:48 PM EST, Tue February 14, 2012

The U.S. high court had ruled a British father could continue federal appeals in an effort to regain custody of his son.


• A case involving an international treaty and parental custody rights is closed.

Courts in Chile and the United States had issued different rulings in the case.

•The question is left unresolved when the boy at the center of the case turns 16

Washington (CNN) -- He was known only as A.J.A.-- a little boy at the center of a international custody fight that went all the way to the U.S. Supreme Court. The near decade-long dispute has now come to an end, not because of any judicial action, but simply because of time.

Alex Abbott turned 16 recently and has officially "aged out" of coverage under The Hague Convention dealing with child abduction across borders. A U.S. federal judge this week signed an order dismissing the case between the boy's parents.

Mother and son now live in Texas. She says the youngster seeks no further contact with his father.

Jacquelyn Vaye Abbott said she was shocked when she heard the news Monday, never quite sure her case would ever be resolved.

"Alex is safe and his own country, that's the most important thing," she told CNN from her office in Austin. "We're whole, we're here, we're safe. Everything else is inconsequential."

The Supreme Court in 2010 ruled the British father could continue his federal appeals in his effort to regain custody of his son, who was taken by his mother from Chile to Texas despite a Chilean court's decree prohibiting either parent from taking the child out of the country without consent from the other.

The judicial appeal tested the power of federal courts to intervene when fights over children go global, and tackled the issue of the scope of international treaty, and whether one country's court order preventing a child from being taken overseas by a parent represented a "right of custody" enforceable in the United States.

The justices, by a 6-3 vote, said Timothy Abbott had such a right of custody and could force the boy's return to Chile, even though courts in that South American nation had said that despite the earlier decree, the father enjoyed only limited power as a non-custodial parent.

The case was tossed back to the lower federal courts. During one recent hearing, the boy told a federal judge why he did not want to live with or see his father.

There was no immediate reaction from Timothy Abbott's Washington attorney to the judge's final order of dismissal.

This custody fight involved a broad mix of nations and nationalities. The father is a British citizen and his estranged wife is an American. They married in England and their son, born in Hawaii in 1995, is a U.S. citizen.

The family subsequently moved to Chile, and the couple separated in March 2003. The mother was later awarded custody of the boy, while the father was granted visitation rights. It was at that point that the Chilean courts issued a decree prohibiting either party from removing the child from the country without mutual consent.

But Jacquelyn Abbott did just that, taking the then-10-year-old boy amid a fight over visitation by the father. She claimed that due to visa restrictions in Chile, she could not find work or rent an apartment.

Timothy Abbott then hired a private investigator who eventually located the child in San Antonio, Texas. Abbott next went to federal court, asking that his son -- known in court papers as "A.J.A." -- be returned to Chile under provisions enforceable by international law.

The Hague Convention on the Civil Aspects of International Child Abduction grants parents in general a "right of custody" and a separate "right of access," ensuring the laws of one country are respected in the others.

More than 80 countries are a party to the treaty, including the United States and Chile.

A federal appeals court in New Orleans concluded the father had only visitation rights, not formal "custody, care and control." It said he could not claim a "right of custody" under The Hague Convention. The judges noted, however, that he had a "right of access," allowing him to see the child in the United States.

But the U.S. Supreme Court later voided that ruling.

"To interpret the convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat (custodial) right, would run counter to the convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes," Justice Anthony Kennedy said.

In dissent, Justice John Paul Stevens said the father's rights were necessarily limited, and he lacked the ultimate power to say where the boy should live. Under the justice's reading of the convention, the father had authority only "to seek assistance from this country in carrying out the Chilean family court's visitation order."

But the now-retired Stevens accurately predicted the Abbott child could, under Texas law, eventually have a vital role in deciding where he would live. "So no matter what we do, the child may actually provide the answer to this case," he said when the case was argued two years ago.

The Abbott case has been cited in other similar custody disputes involving the United States, Italy, and Mexico.

Jacquelyn Abbott expressed frustration that her estranged husband used an international treaty and the federal courts to try to thwart earlier Chilean court decisions.

"My husband had threatened that he would do anything to leave me with nothing, including my child, despite the fact the (Chilean) courts had granted me full custody. So he tried to drag this out for as long as he could. And my son has been waiting for years for strangers to decide his future. The (Hague) treaty leaves too much room for abuse by a vengeful parent."

Jacquelyn Abbott has tried without success to get a divorce from her husband, who has long objected.

She said her son has adjusted surprisingly well to all the personal turmoil in his young life. "He's very relieved when I told him last night about the court order," she said. "He just smiled and said, 'That's very good news, indeed.'"

The Supreme Court case was Abbott v. Abbott (08-645).


Val said...

Sheesh... I ain't a lawyer; who can figure these things out?
Sounds like it worked out in the boy's best interest, however.

NYMOM said...

Hi Val, hope you and your son are well...

The problem is when we allow Judges to interpret these laws dependent upon which parent they 'like' the most, it can turn out right, but oftentimes doesn't.

BTW, I find the parent they 'like' the most is usually the one who has the biggest bank account and gets the most expensive lawyer (who already probably has an ongoing working relationship with the Judge, maybe they even graduated from the same law school, move in the same social circles, etc.,) so this can mean the parent without access to a lot of funding, which is still generally women, gets the short end of the stick.

Especially with these international situations where men are still favored in many places such as the middle East, S. America, China, etc.,

A mother and children can get royally screwed in these cases.

Which is why I really don't like the Hague convention anyway since the only ones who follow it are the countries in the West. So why should women have to put up with playing gender neutral on their home court, when men already have the advantage in international's like a double burden on women.

Of course this contradicts what I just said.

I guess I've just become very mistrustful of mothers relying on the kindness of Judges when our children are at stake.

I'm just saying we have to be careful before supporting these sorts of decisions...that's all...

NYMOM said...

You're right about women's socialization being a major problem in many of these situations...

I'm just saying we have to be careful about accepting 'gifts' like this from our legal system. Because down the road it could backfire on us and cause hundreds of thousands of mothers to not be able to see their children again.