Posted by Post Authored By: Shannon Luschen
For years, federal courts across the country have differed in defining the term “habitual residence” for purposes of Hague Convention child abduction cases – the first element which the left behind parent must prove when seeking to have the child returned to their home country. Some circuits, such as the Sixth Circuit, have relied almost exclusively on the child’s experience and acclimatization to a place when determining where that child was habitually resident. See Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). Other circuits, such as the Ninth Circuit, have relied more heavily on the parent’s shared intentions of where the habitual residence of a child is. See Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). Still other circuits, like the Seventh Circuit, have taken a hybrid approach to the two factors and looked at both the shared intentions of the parents and the child’s acclimatization to a place. See Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013). Clarifying these variations, the United States Supreme Court resolved the issue earlier this year in Monasky v. Taglieri, siding with the Seventh Circuit.
FACTS
Monasky and Taglieri were married in the United States and later relocated to Italy. At that point, they had no plans to return to the United States. About a year after they moved, Monasky became pregnant. The marriage, however, began to crumble as Taglieri became physically abusive towards Monasky. Monasky considered moving to the United States; applied for some jobs and inquired about divorce with attorneys. At the same time, however, the parties were still making plans to raise their child in Italy (the child was born in 2014).
In 2015, Monasky eventually fled to the United States with the child. Taglieri first asked an Italian court to terminate Monasky’s parental rights, and ex parte, the mother’s rights were terminated. Taglieri then filed a Hague Convention petition to return the child to Italy on the grounds that Italy was the child’s habitual residence. The district court decided that since the child was too young to have acclimatized to her surroundings in the United States, and relied on the last shared intention of the parents – who had lived in Italy with the child. Thus, the child was ordered back to Italy to live with the father, Mr. Taglieri. The Sixth Circuit eventually affirmed the return.
ISSUES
- When an infant is too young to acclimate to her surroundings, is a subjective agreement between the infant’s parents necessary to establish her habitual residence?
- What is the proper standard of review of a District Court’s decision of habitual residence?
OPINION
The United States Supreme Court first considered the standard of habitual residence and whether an actual agreement between the parents on where to raise their child was a necessary element towards establishing an infant’s habitual residence. The Court stated that habitual residence is heavily fact-driven and should be determined by a totality of the circumstances. The courts should make a fact-driven inquiry that is “sensitive to the unique circumstances of the case and informed by common sense.” It held that “[t]here are no categorical requirements for establishing habitual residence – least of all an actual-agreement requirement for infants.” Although parental agreements are relevant in determining habitual residence, they are in no way dispositive across all cases.
The Court rejected Monasky’s argument that an actual agreement was necessary for a finding of habitual residence. It stated that since there are an array of factors for courts to consider when determining habitual residence other than an actual agreement, this bright-line rule is unnecessary. It also rejected Monasky’s argument that this requirement would protect young children from domestic violence because it would leave many children without a habitual residence and thus unprotected by the Hague Convention. The Court explained that domestic violence is an issue that should be more fully explored in the custody determinations after the child is returned. Further, the Hague Convention already provides protection from the problem of physical abuse in its Article 13(b) defenses which would prevent the return of the child based upon that defense.
For the second inquiry, the Court determined that the appropriate standard of review is clear-error review. This is based on the fact that the habitual residence inquiry is a mixed question of law (what is the appropriate standard for habitual residence?) and fact (was the child at home in the particular country at issue?).
The Supreme Court refused to disturb the decision to return the child to Italy and thus affirmed the Sixth Circuit’s judgment. Ultimately, this decision now allows courts across the United States to better handle Hague Child Abduction Petitions with uniformity and fairness. The clarity of the standard upon which the determination should be made is set forth for every circuit to follow. Uniformity better serves the prime goal of the Hague Convention to allow quicker determinations and ultimately to resolve these most difficult matters.
About The Author:
Shannon Luschen is an associate with Feinberg Sharma in Chicago, which focuses exclusively on family law matters. Shannon received her undergraduate degree at the University of Wisconsin-Madison undergrad and her J.D. at Chicago-Kent College of Law, where she graduated cum laude.