In a child custody and visitation proceeding under the Hague Convention, the right of access is the right to spend time-sharing with the child for a limited period of time in a place other than a child’s usual residence. The remedy for a violation of this right is not to force the return of the child. A parent’s right to withhold consent to take a child out of the country is a right of custody.
In Sanchez v. Suasti the Florida Court of Appeal recently stated: “The only disputed issue in this regard is whether the father had “rights of custody” under the Hague Convention. The trial court concluded the father merely had “rights of access.” The Hague Convention draws a distinction between a parent’s “rights of custody” and “rights of access.” A parent’s “right of access” is defined as “the right to take a child for a limited period of time to a place other than the child’s habitual residence. “Hague Convention, art.5.The remedy for the violation of a parent’s right of access does not include the right to force the return of the child. Instead, a court may, for example, “force the custodial parent to pay the travel costs of visitation, or make other provisions for the noncustodial parent to visit his or her child.” Abbott, 560 U.S. at 13 (internal citation omitted)…In Abbot, the United States Supreme Court held a non-custodial parent’s right to consent before the custodial parent could take the child to another country constituted “rights of custody” under the Hague Convention. Id. at 10…A parent’s right to determine the country of a child’s residence is a right of custody. “In doing so, the Court held a noncustodial parent’s joint right to determine a child’s country of residence constituted “rights of custody” under the Hague Convention. “
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