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The Supreme Court issued three very important decisions today all of which, in different ways, engage issues of gender and/or sexuality law:

Graham v. Florida, holding that teenagers may not be locked up for life without chance of parole in non-capital cases;

U.S. v. Comstock allowing federal officials to indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete; and

Abbott v. Abbott, finding that under the Hague Convention on the Civil Aspects of International Child Abduction, the mother who had been awarded custody of her child after divorcing the child’s father (who had been awarded visitation, not custody rights) may not remove the child from the country in which they had all been living (in this case Chile) without the father’s prior consent.

A couple quick thoughts about Abbott v. Abbott: the Court was faced with interpreting an international convention, to which the U.S. is a signatory, in such a way that pitted the rights of the non-custodial parent against both the custodial parent and the best interests of the child.  By upholding the non-custodial parent’s right to, essentially, veto the custodial parent’s decision to relocate the child, the decision treated parenthood as a kind of indivisible property right that could not be extinguished without an extremely compelling justification: “a grave risk that . . . return would expose the child to . . . harm or [an] otherwise . . . intolerable situation.” Justice Stevens, in dissent, characterized the majority opinion written by Justice Kennedy for treating the “right to determine the child’s place of residence” as “one stick in the bundle that may be parsed as a singular ‘righ[t] of custody.’”  Students of property law will recognize the reference to property rights as a “bundle of sticks” – such that removing one stick, or right, from the bundle diminishes the value of the property right, or in this case parental right, in its entirety.

Treating parents’ rights to their children as a kind of property right is not new, of course.  The New York Court of Appeals in Debra H. v. Janice R. took a similar approach last month, as I previously noted, to the rights of the biological mother in a lesbian co-parenting situation where the non-biological co-parent sought visitation with the child they had raised together.  The Abbott decision draws from a similar pedigree: for better or for worse, biological parents retain virtually absolute rights to their children unless there is some grave reason to annul or diminish that right of dominion.

The Abbott case shares another similarity with Debra H.: that of elevating the rights of parents over serious consideration of the “best interest of the child.”  As SCOTUSBlog noted in its discussion of the oral argument in Abbott, “one scenario itched at Justice Breyer that he raised repeatedly during the argument: What if the custodial parent – presumably the one with whom the child would be better off – is the one who moves the child abroad and the non-custodial parent is the one requesting return?   In particular, what if that non-custodial parent is akin to a ‘Frankenstein’s monster’ whom the family-law judge denied any rights over the child?   If the Convention grants such a parent custody rights, Breyer insisted he could not see the ‘humane purpose’ behind it.”

My colleague Elizabeth Scott has written a great deal challenging the ongoing utility of the notion of “best interests of the child,” suggesting instead that courts use what she calls an “approximation standard” that custody and visitation be awarded not according to the amorphous “best interests” standard but rather so as to approximate the amount of time and care that each parent has spent with the child.  Whether you prefer the “best interests” standard or Scott’s “approximation” standard, both consider the interests of the child in apportioning rights to the parents.  Abbott fails to do so in a meaningful way.

2 comments

  1. Supreme Court Roundup: Teenagers' Rights, Indefinite #Prison 4 `Sexually Dangerous' Convicts, Parents' Property Rights http://shar.es/mC7Cg

  2. Deference to op, some fantastic information .

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