May a custodial parent, over the objection of the co-parent, exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction? Parent A says: "I am the custodial parent. I should be able to take my children to visit my parents in Jamaica (for example) without my co-parent's permission because I have custody and he/she only has parenting time." Parent B says: "Michigan law prohibits a parent from exercising parenting time in a non-Hague Convention country if I do not agree. And I don't agree because all of the custodial parent's relatives live in the non-Hague Convention country and I am fearful that if they travel there, the children will never be returned."
And, indeed, this is what the Michigan statute says:
Except as provided in this subsection, a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. Michigan Complied Laws 722.27a(9)
Jamaica is neither a Partner to the Hague Abduction Convention nor is it a Party under the Hague Abduction Convention. Thus, unless both parents agree, there can be no travel to a non-Hague country.
U.S. “treaty partners” are those countries that have either ratified the Convention, or acceded to the Convention and the U.S. has accepted their accessions. The treaty partners for the Hague Convention on the Civil Aspects of International Child Abduction. So the U.S. State Department Website [Note: Some countries have acceded to the Convention but the United States has not accepted their accessions. A country in this category is party to the Convention but not a U.S. treaty partner. Cases from these countries are treated as ‘non-Hague’ cases for purposes of assistance available from the State Department. More limited services are available for non-Hague cases].
The fact that Parent A has primary custody is a distinction without a difference. The "custodial parent," here Parent A, has more parenting overnights with the children than Parent B. Under the Hague Convention and cases interpreting it, Michigan's statutory prohibition against exercise of parenting time in a non-Hague country without permission of co-parent is a “ne exeat” provision which provides rights of custody.
Authority for this proposition lies in Abbott v Abbott, 130 S. Ct. 1983, 176 L.Ed.2d 789 2010. After the Abbotts, a married couple, moved to Chile and separated, the Chilean courts granted respondent wife daily care and control of their minor son, A. J. A., while awarding petitioner husband visitation rights. Mr. Abbott also had a ne exeat right to consent before Ms. Abbott could take A. J. A. out of the country under Chile Minors Law 16,618 (Minors Law 16,618), art. 49. Mr. Abbott's ne exeat right is exactly the same as the right conferred to a parent under MCL 722.27a. Download MCL-722.27a
When Ms. Abbott brought A. J. A. to Texas without permission from Mr. Abbott or the Chilean family court, Mr. Abbott filed this suit in the Federal District Court, seeking an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq. Among its provisions, the Convention seeks “to secure the prompt return of children wrongfully removed or retained in any Contracting State.” The essential holding of the Abbott case is that Mr. Abbott had a right of custody under the Convention by reason of his ne exeat right. Therefore, under the Hague Convention and ICARA, Mr. Abbott could seek enforcement of that right and compel return of the child to Chile.
Which countries are partners to the Hague Convention on the Civil Aspects of International Child Abduction? The list is here on the State Department's website.
While you are there, join the State Department's Hague Convention Attorney Network You can be a part of the solution in recovering children abducted to other countries.
A whole page of resources for lawyers is found here on the State Department website.
The US State Department Office of Children’s Issues is required to prepare an annual report on international child abductions. The report contains data about which party countries are in compliance and which are not. This is a good resource in assessing risk of exercise of parenting time in a country, whether it is a partner or party to the Convention or not as some partners are not in compliance. The Compliance Reports are found here on the State Department website.