Supreme Court Clarifies Habitual Residence Standard for International Custody Disputes
In Monasky v. Taglieri, 589 U. S. ____ (2020), the U.S. Supreme Court held that a child’s “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction depends on the totality of the circumstances specific to the case rather than categorical requirements, such as an actual agreement between the parents. The Court further held that at a first-instance habitual-residence determination is subject to deferential appellate review for clear error.
Facts of the Case
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), implemented in the United States by the International Child Abduction Remedies Act, provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. The Convention does not define “habitual residence,” but, as the Convention’s text and explanatory report indicate, a child habitually resides where she is at home.
In this case, Michelle Monasky, a U.S. citizen, brought her infant daughter, A.M.T., to the United States from Italy after her Italian husband, Domenico Taglieri, became abusive to Monasky. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T.’s return to Italy under the Convention, pursuant to 22 U.S.C. §9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.”
The District Court granted Taglieri’s petition, concluding that the parents’ shared intent was for their daughter to live in Italy. Two-year-old A.M.T. was subsequently returned to Italy. The en banc Sixth Circuit affirmed. Under its precedent, the court first noted, an infant’s habitual residence depends on the parents’ shared intent. It then reviewed the District Court’s habitual-residence determination for clear error and found none. In doing so, the court rejected Monasky’s argument that Italy could not qualify as A.M.T.’s “habitual residence” in the absence of an actual agreement by her parents to raise her there.
Supreme Court’s Decision
The Supreme Court affirmed. “In accord with decisions of the courts of other countries party to the Convention, we hold that a child’s habitual residence depends on the totality of the circumstances specific to the case,” Justice Ruth Bader Ginsburg wrote on behalf of the unanimous Court. “An actual agreement between the parents is not necessary to establish an infant’s habitual residence.”
While the Court acknowledged that the Hague Convention’s text does not address what makes a child’s residence sufficiently enduring to be deemed ‘habitual,’ it also noted that the text “does not say that habitual residence depends on an actual agreement between a child’s parents.” The Court also noted that the Federal Courts of Appeals share a “common” understanding: The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence. Justice Ginsburg further explained:
Because locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases.
The Supreme Court went on to find that Monasky’s arguments in favor of an actual-agreement requirement were unpersuasive. “An infant’s ‘mere physical presence,’ we agree, is not a dispositive indicator of an infant’s habitual residence,” Justice Ginsburg wrote. “But a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’”
With regard to the second key issue in the case, the Court held that a first-instance habitual-residence determination is subject to deferential appellate review for clear error. As Justice Ginsburg explained, a trial court’s habitual-residence determination presents a mixed question of law and fact that is heavily fact laden. The determination thus presents a task for fact-finding courts and should be judged on appeal by a clear-error review standard.
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