Jacqueline's argument begins by pointing out that the Hague Abduction Convention' s purpose was to maintain the status quo in a child's life and will not return a child for parent's who only have "rights of custody." She asserts that Timothy held no custody rights under Chilean law and thus holds no rights of custody within the Convention's definition. Further, the plain meaning in the Article 5 definition clearly indicates that a ne exeat order is not "rights of custody."
Then, the brief argues that a ne exeat order is not a right--it is simply a tool to protect a court's jurisdiction. Even if it were a right, it is only blocks a parent's ability to leave a country. Moreover, Timothy did not hold that right--the ne exeat order left that decision up to a court. Taken in the context that rights must be "actually exercised," the brief contends that the ne exeat order cannot meet the Convention's definition.
What's more, Jacqueline's brief argues, is that the negotiations leading up to the Convention confirm this conclusion. First, the travaux preparatoires confirm that "rights of custody" depend on the rights conferred in the country of habitual residence. Second, delegates considered but did not include ne exeat orders as "rights of custody."
In sum, Jacueline's brief implores the Court not to judicially amend the Convention into a jurisdictional treaty to enfore ne exeat orders. Instead, the Court should preserve the existing custody that Jacqueline holds rather than separate her from her son.
Finally, the brief notes that foreign courts are divided and the Special Commissions' and State Department's positions on the issue are not postratification practices nor do they expose signatories intent. Thus, the Court should uphold the decisions below denying Timothy's Hague petition.