May 29th, 2009
07:30 AM ET

Sotomayor – a dissent that might win

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Bill Mears
CNN Supreme Court Senior Producer

An example of how one court’s old ruling in a case can have current legal and political implications, especially for a Supreme Court nominee.

Judge Sotomayor heard a case in 2000 dealing with child custody disputes and international law. A woman who had sole custody of her daughter Christina took the child from Hong Kong to New York, and the divorced father went to court. He argued a custody order signed at the time of the divorce from Hong Kong prevented removal of the child to another country without his consent.

At issue was whether this custody order—called a “ne exeat clause” to all you lawyers– created a right of custody enforceable under the Hague Convention on International Child Abduction. In the first time a federal court ruled on this issue, the Second Circuit U-S Court of Appeals concluded the child’s removal was legal, since the father did not possess rights of custody under the international law. The court also said such custody orders are limited since the mother had "custody, care, and control" of the child, and thus the sole right to determine Christina's place of residence.

Sotomayor dissented, saying that the court majority too narrowly interpreted the impact of the custody order, and that such orders constitute a right of custody. The case was Croll v. Croll and the Supreme Court eventually refused to examine the issue, keeping in place the 2nd Circuit opinion.

Fast forward to 2009 and a nearly identical case the high court is currently considering. In Abbott v. Abbott (08-645) the father, a British citizen had married an American. They eventually moved to Chile but then separated. She gained custody then secretly took the boy to Texas. He filed a claim in federal court. The federal government was asked to weigh in on the issue and today filed its brief with the high court, arguing what Sotomayor articulated nearly a decade ago: that custody orders do constitute a right of custody for international law purposes. A federal appeals court in New Orleans in this case agreed the father had no right to contest the removal under the “ne exeat” clause. But other circuit courts, as well as international courts, are split on the issue, making it ripe for Supreme Court review.

The justices will decide in late June whether to accept the Abbott case. If they do as many legal experts predict, the appeal would be heard later this year, when Sotomayor might be on the bench.

Filed under: 360° Radar • Sonia Sotomayor • Supreme Court
soundoff (4 Responses)
  1. Mari

    Interesting comments and article. I can not comment on the case, not having knowledge of the law. However, I can comment on what I have read and researched on Judge Sotomayor.

    No other Supreme Court nominee has had such a huge wealth of experience as does Sotomayor. She is very qualified.

    The fact that Bush I and Clinton, from opposing parties, both nominated her speaks highly for Sotomayor.

    At the very least, Sotomayor brings a "voice" that has been lacking at the highest court of our Nation........ the voice of another woman and a Latina. We are a diverse Nation, our courts should represent that fact.

    May 29, 2009 at 11:24 am |
  2. JudiB

    Court cases are extremely complex with hours of evidence and testimony impacting final decisions. To try to pare it down into two or three sentences to "represent" the facts, and then to use that representation as argument for what should "reasonably" be expected in a different case is absurd.

    I'm frankly bewildered by all the "rush to judgement" (or should that be Rush to judgement!) over how a judge's personal history, experiences on or off the bench, "empathy", etc., should not impact their rulings. Frankly, since EVERY judge who hears a case hears identical information, sees identical evidence, has an identical amount of time to review the case...then how is it possible that those judges DO NOT all come to the same conclusion! It's possible because they DO have different perspectives, different backgrounds, different interpretations of the facts of the situation, and they bring all that to the table when considering a case. They are, after all, human.

    May 29, 2009 at 10:11 am |
  3. ronvan

    Question: I wonder how many judges thoughout America "interpret" laws & apply them to cases they hear? How many attorneys
    "interpret" laws to prosecute or defend people? How many of the so called "do gooder" groups "interpret" the constitution to get their way?
    Judge Sotomayor, according to the news, has more qualifications, and experience in the courts than most of the current SCJ. What this boils down to, for me, is how much tail have you kissed and were they the right ones to kiss! Qualifications & experience do not count.

    May 29, 2009 at 8:51 am |
  4. dani_twotwo

    oh, first commentor!
    interesting about cases but there should also be consideration about the reasons why the mothers left for another country...needed work, abuse, etc. reasons werent mentioned but im curious cause that could obviously be a factor in the descision.

    May 29, 2009 at 8:04 am |