Defining the Standard for “Habitual Residence” and on Appeal Under the Hague Convention – Published Opinion from Supreme Court of the United States

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Monasky v. Taglieri

 

Mother, a United States citizen, claimed that Father, an Italian citizen, became abusive after the couple moved to Italy from the United States. Two months after the birth the parties’ Child in Italy, Mother fled with Child to Ohio. Father petitioned the Northern District of Ohio to return Child to Italy pursuant to the Hague Convention, arguing Child was wrongfully removed from her country of “habitual residence.” The District Court granted the petition, concluding the parents’ shared intent was for Child to live in Italy. Child was returned to Italy. The Sixth Circuit affirmed, holding that a child’s habitual residence depends on the parents’ shared intent. It affirmed the District Court and rejected Mother’s argument that “habitual residence” requires an actual agreement of the parents. The Supreme Court of the United States granted certiorari review to define the standard for “habitual residence” and to define the standard on appeal of a “habitual residence” finding.

 

The Supreme Court held that a child’s “habitual residence” depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. It reasoned as follows: 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. This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense.” Redmond v. Redmond, 724 F.3d 729, 744. Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty’s “negotiation and drafting history” corroborates that habitual residence depends on the specific circumstances of the particular case. Medellín v. Texas, 552 U.S. 491, 507. This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention.

 

The Supreme Court also held that Mother’s arguments in favor of an actual-agreement requirement are unpersuasive. It reasoned as follows: While an infant’s “mere physical presence” is not a dispositive indicator of an infant’s habitual residence, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence has the quality of being “habitual.” Nor is adjudicating a dispute over whether an agreement existed a more expeditious way of promoting returns of abducted children and deterring would-be abductors than according courts leeway to consider all the circumstances. Finally, imposing a categorical actual-agreement requirement is unlikely to be an appropriate solution to the serious problem of protecting children born into domestic violence, for it would leave many infants without a habitual residence, and therefore outside the Convention’s domain. Domestic violence should be an issue fully explored in the custody adjudication upon the child’s return. The Convention also has a mechanism for guarding children from the harms of domestic violence: Article 13(b) allows a court to refrain from ordering a child’s return to her habitual residence if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

 

Finally, the Supreme Court held that a first-instance habitual-residence determination is subject to deferential appellate review for clear error. It reasoned as follows: 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 factfinding courts and should be judged on appeal by a clear-error review standard. There is no “historical tradition” indicating otherwise. Pierce v. Underwood, 487 U.S. 552, 558. Clear-error review has a particular virtue in Hague Convention cases: By speeding up appeals, it serves the Convention’s emphasis on expedition. Notably, courts of other treaty partners also review first-instance habitual-residence determinations deferentially.

 

Digested by Nathan R. Hardymon