IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50967

TIMOTHY MARK CAMERON ABBOTT,

Petitioner-Appellant,

v.

JACQUELYN VAYE ABBOTT,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas, Austin Division

USDC No. 1:06-CV-359

Before KING, WIENER, and ELROD, Circuit Judges.

JENNIFER W. ELROD, Circuit Judge:

This case requires us to determine whether ne exeat rights constitute

“rights of custody” within the meaning of the Hague Convention. For the

reasons set forth below, we hold that they do not. We therefore affirm the

district court’s judgment. 

I. FACTS AND PROCEEDINGS

Petitioner-Appellant Timothy Abbottis a British citizen, and RespondentAppellee Jacquelyn Abbott is a U.S. citizen. The parties married in November

1992 in England, and their son was born in Hawaii in June 1995. Beginning in

2002, the parties and their minor son resided in La Serena, Chile. After the

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-50967

1

“Ne exeat” is defined in the family law context as “[a]n equitable writ restraining a

person from leaving, or removing a child or property from, the jurisdiction.” BLACK’S LAW

DICTIONARY 1060 (8th ed. 2004).

2 Although the father initially pursued only temporary enforcement of his Chilean

visitation rights, the subsequent complaint asserting his rights under the Hague Convention

was filed within the one-year statute of limitations.

2

parties separated in March 2003, they litigated in the Chilean family courts.

The mother was awarded custody, and the father was granted visitation rights.

The Chilean courts entered four separate orders. The first, entered in

January 2004, provided visitation rights to the father. The second, entered in

November 2004, required the parties and their son to undergo private therapy,

denied the father’s request for custody rights, and granted all custodial rights

to the mother. The third, entered in February 2005, expanded the father’s

visitation rights, including visitation for an entire month of summer vacation.

On January 13, 2004, atthe mother’s request,the Chilean court entered a fourth

order prohibiting the child’s removal from Chile by either the father or the

mother without their mutual consent (the “ne exeat order”).1

In August 2005, the mother removed the child from Chile without the

father’s consent. She and the child departed without notice in the midst of

disputes over visitation and other issues. Motions were pending before the

Chilean family court atthe time ofthe child’s removal, butthe Chilean court had

previously awarded all custody rights to the mother in its November 2004 order.

The father hired a private investigator and located his son in Texas. The father

then filed suit in the United States District Court for the Western District of

Texas and sought an order requiring that the child be returned to Chile

pursuant to the Hague Convention on the Civil Aspects of International Child

Abduction (the “Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343

U.N.T.S. 49.2
No. 07-50967

3 The father also argued that Article 229 of the Chilean Civil Code afforded him certain

“residual custodial rights,” but the district court correctly concluded that the statute clearly

provides only for “access” or visitation rights (the right to “maintain a direct and regular

relationship with the child”), not custody rights. See Villegas Duran v. Arribada Beaumont,

No. 06-5614, 2008 U.S. App. LEXIS 15299, at *13–14 (2d Cir. July 18, 2008, amended July

22, 2008) (holding in Hague Convention case that Article 229 of the Chilean Civil Code

addresses only visitation rights, not custody rights).

3

The district court held a bench trial in February 2007. The mother

conceded that she had violated both the Chilean family court’s ne exeat order and

a Chilean statute that required the father’s authorization before the child could

leave Chile. The father argued that the ne exeat order and the statutory ne exeat

provision gave him “rights of custody” within the meaning of the Hague

Convention.3 The district court denied return of the child, finding that the

child’s removal from Chile did not constitute a breach of the father’s “rights of

custody” as defined by the Hague Convention.

II. STANDARD OF REVIEW

We review a district court’s interpretation of a treaty de novo. United

States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir. 2001). 

III. DISCUSSION

A. The Hague Convention

The objects of the Hague Convention are (a) to secure the prompt return

of children removed from one party country to another in violation of the

Convention’s terms; and (b) to ensure that rights of custody and rights of access

under the law of one party country are respected in the others. See Hague

Convention art. I. Eighty countries are parties to the Hague Convention, which

has been in force between the United States and the Republic of Chile at all

times relevant to this case. The Hague Convention is implemented by the

International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§

11601–11611 (1988), in the United States. The ICARA requires that in any

action brought under the Hague Convention for the return of a child, the
No. 07-50967

4

petitioner prove by a preponderance of the evidence that the child in question

“has been wrongfully removed or retained within the meaning of the

Convention.” Id. at § 11603(e)(1)(A). 

Article 3 of the Hague Convention provides as follows:

The removal or the retention of a child is to be considered wrongful

where --

a) it is in breach of rights of custody attributed to a person . . . ,

either jointly or alone, under the law of the State in which the child

was habitually resident immediately before the removal or

retention; and

b) at the time of removal or retention those rights were actually

exercised, either jointly or alone, or would have been so exercised

but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may

arise in particular by operation of law or by reason of a judicial or

administrative decision, or by reason of an agreement having legal

effect under the law of that State.

Hague Convention art. III (emphasis added). Thus, the Hague Convention

provides the remedy of return of a child only if the child’s removal from the

country breached “rights of custody attributed to a person.” Id. The Hague

Convention specifically distinguishes between “rights of custody” and “rights of

access”: 

a) “rights of custody” shall include rights relating to the care of the

person of the child and, in particular, the right to determine the

child’s place of residence;

b) “rights of access” shall include the right to take a child for a

limited period of time to a place other than the child’s habitual

residence.
No. 07-50967

4 The Chilean statute concerning the departure of minors from Chile, according to the

father’s expert witness, provides in relevant part:

If the judge has entrusted custody to one of the parents or to a third party, the

legitimate child may not leave except under authorization of the person to whom

he has been entrusted. 

Once the court has decreed the obligation to allow visits pursuantto the preceding

article, authorization of the father or mother who has the right to visit a child shall

also be required . . . .

If the authorization cannot be granted or is denied without good reason by one of

those who must give it by virtue of this article, it may be granted by the Family

Court Judge in the location where the minor resides.

MINORS LAW 16,618 OF CHILE art. 49 (emphasis added). 

5

Hague Convention art. V. The remedy of return is available only for a violation

of “rights of custody” under the Hague Convention, and that term is defined to

include, “in particular, the right to determine the child’s place of residence.” Id.

The dispositive question in the present case is whether the father

possessed “rights of custody” as defined by the Hague Convention. 

B. Statutory Rights under Chilean Law

A Chilean statute concerning the departure of minors from Chile provides

that if a non-custodial parent has visitation rights, that parent’s authorization

is required before the custodial parent can take the child out of the country

(although a custodial parent may apply to the courtfor permission to remove the

child for an authorized period of time).4 The mother conceded that she violated

the ne exeat order by unilaterally removing the parties’ son. The district court

correctly found that the Chilean statute “does not confer rights distinguishable

in any significant way from those conferred by the Chilean court’s ne exeat

order.” Abbott v. Abbott, 495 F. Supp. 2d 635, 638 n.3 (W.D. Tex. 2007).

Therefore, in this analysis, any rights accruing to the father under the ne exeat

order will be treated the same as rights accruing under the statutory ne exeat

provision. 
No. 07-50967

5 Other federal appellate courts have referenced Croll without reaching the present

issue of whether ne exeat rights are “rights of custody” under the Hague Convention. See, e.g.,

Vale v. Avila, No. 08-2161, 2008 U.S. App. LEXIS 17068, at *12–13 (7th Cir. July 17, 2008)

(holding thatthe court“need not decide whether the doctrine of ne exeat creates custody rights”

because the petitioner had the right of patria potestas under Venezuelan law, and “[w]hen the

parent who does not receive physical custody is given the rights and duties of patria potestas,

he has custody rights within the meaning ofthe Hague Convention”); Whallon v. Lynn, 230 F.3d

450, 458 n.9, 459 (1st Cir. 2000) (distinguishing Croll and holding that patria potestas rights

constitute an “affirmative grant of custody rights to [the petitioner] under Mexican law” and

are “rights of custody” under the Hague Convention).

6

C. The Circuit Split

Three federal appellate courts have determined that ne exeat orders and

statutory ne exeat provisions do not create “rights of custody” under the Hague

Convention. See 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). One federal appellate court, however, has reached

the opposite conclusion.5 See Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir.

2004). The issue is one of first impression in the Fifth Circuit.

1. Second Circuit Opinion in Croll

In Croll, the custodial mother removed the parties’ child from Hong Kong

without the consent of the child’s father in violation of a Hong Kong court’s

custody order. The Second Circuit considered whether a ne exeat clause in the

custody order coupled with rights of access (visitation) conferred “rights of

custody” within the meaning of the Hague Convention. 229 F.3d at 135.

Recognizing thatit was the firstfederal appellate courtto consider the issue,the

Second Circuit engaged in an exhaustive analysis of the purpose and design of

the Hague Convention, its wording, the intent of its drafters and the case law of

other signatory states. Id. at 137. The Croll court considered the ordinary

meaning of the phrase “rights of custody” and determined that the Hague

Convention referred to a bundle of rights relating to custody, such that
No. 07-50967

7

possessing only one of the rights did not amount to having “rights of custody.”

Id. at 138–39. 

The Second Circuit’s analysis is consistent with the emphasis the Hague

Convention places on “the right to determine the child’s place of residence”

because a ne exeat veto right is only a partial power—in other words, only one

of a bundle of residence-determining rights. The Croll court stated that this

“single veto power, even if leveraged, falls short of conferring a joint right to

determine the child’s residence, particularly since an earlier clause in the

custody order awards ‘custody[,] care and control’ solely to the mother.” Id. at

139–40. The mother had the right to choose where the child would live within

Hong Kong, and the father had no control over her choice. Furthermore,

although the father could refuse to consent to the child’s removal from Hong

Kong, he could not require that the child live in another country; thus, he had

only a veto right over the child’s removal from Hong Kong rather than an

affirmative right to determine the child’s residence.

While recognizing that the mother’s violation of the Hong Kong order had

frustrated the father’s visitation rights, the Second Circuit refused to judicially

amend the Hague Convention’s “explicit textual distinction between rights of

custody and rights of access.” Id. at 142. The court held that the Hague

Convention’s remedy of return is available only if rights of custody are violated,

explaining that “the frustration of judicial power is not the touchstone for a

return remedy under the Convention.” Id. The Fourth and Ninth Circuits have

followed Croll, holding that ne exeat rights are not “rights of custody” under the

Hague Convention. See Fawcett, 326 F.3d at 500; Gonzalez, 311 F.3d at 948. 

2. Eleventh Circuit Opinion in Furnes

The Eleventh Circuit has explicitly rejected Croll. Furnes, 362 F.3d at

719. In Furnes, a provision in the Norwegian Children Act contained a ne exeat

clause providing that “[i]f the parents have joint parental responsibility, both of
No. 07-50967

6 The Eleventh Circuit explained that a court in Norway had granted custody of the

child to the father and had found that the mother instigated conflict and had made false

accusations against the father. Furnes, 362 F.3d at 704. The mother appealed the court’s

custody decision, and the parties reached an agreement while the appeal was still pending.

Id. at 706. The parties agreed that they would maintain “joint parental responsibility” for

their daughter according to Norwegian law; that the child would live with her mother, who

would have custody; and that the father would have certain rights of access. Id. The Furnes

opinion was based on the ne exeat clause and on the custody arrangements set out in the

parties’ agreement, with Norwegian law defining the term “joint parental responsibility.”

7 Another part of the Furnes opinion, however, refers to “rights of custody” as derived

from a ne exeat right in combination with rights of “joint parental responsibility.” 362 F.3d at

720 (“We conclude that this ne exeat right, especially in the context of [the father’s] retained

rights under §30 [giving those with parental responsibility ‘the right and duty to make

decisions for the child in personal matters’], constitutes a ‘right of custody’ as defined in the

Convention.”). 

8

them must consent to the child moving abroad.” Id. at 707–08. Norwegian law

granted parents with visitation rights “joint parental responsibility,” which

meant in this case that the non-custodial father6 had the right “to make

decisions for the child in personal matters,” including “decisions that affect the

child’s care.” Id. at 706, 714. Norwegian law also provided, however, that

because the child lived with her mother, the mother had the right to determine

“where in Norway the child shall live.” Id. at 708.

The Furnes court determined that the custodial mother (who could

determine where the child lived within Norway) and the non-custodial father

(who could veto the child’s removal from Norway) “each possessed elements of

[the] place-of-residence right, which they exercised jointly.” Id. at 719–20. The

Eleventh Circuit then held that a ne exeat right alone is sufficient7to constitute

a custody right: “We conclude that this ne exeat right grants [the father] a right

of custody under the Hague Convention.” Id. at 714. The court explained,

[E]ven if [the father’s] ne exeat right is (we believe incorrectly)

viewed as a mere “veto right” or limitation on [the mother’s] right to

determine [the child’s] place of residence, we nevertheless believe

that the ne exeat right under Norwegian law is a right of custody

under the Convention . . . . [E]ven assuming arguendo that [the
No. 07-50967

9

father] does not have the right to determine [the child’s] place of

residence, he has at the very least a veto right relating to the

determination of her place of residence—that is, a right “relating to

the care of the person” of [the child]. As such, the ne exeat right . . .

provides [the father] with a right of custody over [the child] as

defined by the Hague Convention.

Id. at 716. The Furnes court reversed the district court’s denial of the father’s

petition and remanded for entry of an order that the child be returned to

Norway.

3. Decisions from Other Countries

As the district court noted, foreign courts disagree regarding whether ne

exeat rights are “rights of custody” within the meaning ofthe Hague Convention:

The opinions of courts in other signatory states to the Hague

Convention are also “entitled to considerable weight.” Air France v.

Saks, 470 U.S. 392, 404 (1985). As outlined in Gonzalez and Croll,

however, the cases from other signatory states addressing the rights

conferred on a parent by a ne exeat order are “few, scattered, [and]

conflicting” and thus do not guide this Court in its consideration of

the issue.

Abbott, 495 F. Supp. 2d at 638 n.4. The Furnes court 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.

D. The District Court’s Decision

The district court held a bench trial on February 16, 2007, allowing each

side one hour for presentation. It appears that only the father testified at trial,

and the facts were essentially undisputed. The mother’s attorney conceded that

the mother had violated both the Chilean family court’s ne exeat order and a

Chilean statute that required the father’s authorization before the child could
No. 07-50967

8 We need not, and do not, rely on this analogue of legislative history, as the Hague

Convention’s “explicit textual distinction between rights of custody and rights of access”

compels our decision. See Croll, 229 F.3d at 142. 

10

leave Chile. The mother argued, however, that the father did not have “rights

of custody” within the meaning of the Hague Convention. 

In its Findings of Fact and Conclusions of Law, the district court correctly

identified the issue as whether the removal was “wrongful” under the Hague

Convention, which hinged on whether the father possessed “rights of custody.”

The district courtthen factually distinguished Furnes, 362 F.3d 702, noting that

the father in Furnes had rights of“joint parental responsibility” while the father

in the instant case did not have “Chilean statutorily protected rights to make

decisions affecting” his son’s care. Abbott, 495 F. Supp. 2d at 639. The district

courtthen followed Croll, Gonzalez, and Fawcett, holding that the ne exeat order

did not give the father “rights of custody” but gave him only “veto power over

specific places of residence” that the mother might select. Id. at 640. The

district court noted that entry of the ne exeat order did not give the father

custody rights or change the mother’s daily control over the child. Id.

The district court focused on the Hague Convention’s distinction between

“rights of access” and “rights of custody” and quoted from the official history and

commentary on the Hague Convention (which had also been quoted in Croll and

in Gonzalez), confirming that despite a discussion on the issue, there was no

agreement by the Hague Convention drafters to establish a remedy of return for

violation of “rights of access.” Id.8 The district court concluded: 

Although Ms. Abbott’s removal of [the parties’ son] violated and

frustrated the Chilean court’s order, so too would the removal of a

child from a country in which any parent with rights of access

resided. Mr. Abbott’s right of access, however enhanced and

protected by the ne exeat order, is simply not sufficient to create

rights of custody that warrant the greater protection intended under

the Hague Convention. This Court in no way condones Ms. Abbott’s
No. 07-50967

11

action. . . . [The child’s] residence in the United States obviously

interferes with Mr. Abbott’s visitation rights, as established by the

Chilean court. However, the Hague Convention explicitly creates a

different set of remedies for those parents whose rights of access are

frustrated by the custodial parent’s removal of a child . . . .

Id. at 640–41 (citation and footnotes omitted). The district court denied return

of the child, finding that the father did not establish by a preponderance of the

evidence that his son’s removal constituted a breach of “rights of custody” as

defined by the Hague Convention.

We note thatthe ne exeat order prohibited either parent from removing the

child from Chile without the consent of the other. The ne exeat order thus gave

the father a veto right over his son’s departure from Chile, but it did not give

him any rights to determine where in Chile his child would live. Furthermore,

the Chilean family court, in its second order, expressly denied the father’s

request for custody rights and awarded all custody rights to the mother. 

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.

IV. CONCLUSION

Although Jacquelyn Abbott unquestionably violated Mark Abbott’s rights

by removing their child from Chile without his consent, he possessed only rights

of access to the child, and not rights of custody, at the time of the child’s removal.
No. 07-50967

12

Under these circumstances, the Hague Convention does not provide a remedy of

return of the child to Chile. We therefore AFFIRM the district court’s judgment.