Although the Supreme Court decision in Abbott has now expressly determined that Ne Exeat rights are custody rights as defined by the Hague Convention, Pielage still has some practice relevance in terms of the tricky question of the intersection and conflict caused by pending state court custody cases running side by side with a Hague Petition brought in federal court under ICARA.
In Abbott, The Ne Exeat right was a Chilean one being enforced by the Hague Petitioner. In Pielage, the Eleventh Circuit was confronted with a Petitioner who was objecting to a Ne Exeat right being established by an Alabama state court.
In denying Appellant’s claim that the Alabama state court ran afoul of the Article 12 of the Hague Convention, the Eleventh Circuit wrote:
” Pielage argues in her brief that “[i]f the Hague Convention means anything, it means that a child may not be retained away from the place where (s)he habitually resides, against the wishes and needs of his or her custodian.” This is not entirely accurate. According to the Pérez-Vera Report, the treaty’s “reference to children `wrongfully retained’ is meant to cover those cases where the child, with the consent of the person who normally has custody, is in a place other than its place of habitual residence and is not returned by the person with whom [he] was staying.” Id. ¶ 57 (emphasis added). In other words, the Hague Convention was meant to cover the situation where a child has been kept by another person away from the petitioner claiming rights under the Convention, not where the petitioner still retains the child but is prevented from removing him from the jurisdiction.”