(Mar. 5, 2020) The U.S. Supreme Court recently endorsed a “totality of the circumstances” test for determining a child’s habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Court also held that a trial court’s determination of habitual residence is entitled to deferential appellate review and should be overturned only for a finding of clear error. (Monasky v. Taglieri, No. 18-935, slip op. at 1 (Feb. 25, 2020).)
Monasky, a U.S. citizen, and Taglieri, an Italian citizen, were married in 2011 while residing together in the United States. In 2013, the parties relocated to Milan, Italy. In Italy, the parties’ marriage became strained and Taglieri was physically abusive to Monasky. After Monasky became pregnant in 2014, Taglieri moved three hours away to Lugo, but the parties continued to collaboratively plan for the birth of their child in Italy, including researching childcare options, purchasing baby supplies, and obtaining a larger residence in Milan. After the child was born in February 2015, Monasky told Taglieri that she wanted a divorce and that she anticipated returning to the United States. Monasky and the infant later joined Taglieri in Lugo. In March 2015, Monasky and the infant sought shelter in a domestic violence safe house. Two weeks later, Monasky and the child left Italy for Ohio.
Within months of Monasky’s departure, Taglieri petitioned the District Court in the Northern District of Ohio for return of the child to Italy under the Hague Convention on the basis that Italy was the child’s country of habitual residence. After a bench trial, the District Court determined that the facts of the case, including the infancy of the child at the time she was removed from Italy, supported the conclusion that the parties’ shared intent was to raise the child in Italy and that the parents had no definitive plan to relocate to the United States. Thus, the District Court determined that the child’s habitual residence was Italy and ordered the child’s return to Italy (Return Order). Monasky’s appeals for a stay of the Return Order were denied. In December 2016, the almost-two-year-old child was returned to Italy to her father’s care.
The child remained in Italy while Monasky appealed the Return Order. Monasky’s main argument was that the District Court improperly assessed “shared parental intent” because she and Taglieri never formed an actual agreement about where the child would be raised. The Sixth Circuit adhered to the District Court’s use of “shared parental intent” to assess the habitual residence of an infant and upheld the Return Order, finding no clear error in the District Court’s assessment of the facts. (Taglieri v. Monasky, 907 F.3d 404 (2018).)
The Hague Convention (to which Italy and the United States are both signatories) is a treaty designed to discourage international child abduction during domestic disputes, facilitate the prompt return of children wrongfully removed to a signatory state, and ensure that custody determinations in a child’s country of habitual residence are honored. The term “habitual residence” is not defined in the Hague Convention, but it is a dispositive inquiry in many Hague Convention cases. For a child who is old enough, courts look to the place where the child has “acclimatized.” Infants, however, are typically deemed too young to have acclimatized anywhere, so courts look to “shared parental intent” in determining a child’s habitual residence.
U.S. courts treat the question of a child’s habitual residence as primarily fact based. On appeal, a trial court’s fact-finding determinations are typically reviewed deferentially and are overturned only if the appellate court finds clear error.
Supreme Court Holding
Justice Ginsburg, writing for the majority, affirmed that the determination of a child’s habitual residence under the Hague Convention is a “fact-driven inquiry” that cannot be resolved on any single fact. The Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent. Even if there was no agreement, that single fact was not dispositive on the issue of whether the parties had “shared parental intent” to raise the child in Italy. Rather, the determination of a child’s habitual residence depends on the totality of the circumstances, and an “actual agreement between the parents is not necessary” to establish habitual residence.
The Court also settled the question of what is the appropriate standard of review of a trial court’s habitual-residence determination. Generally, pure questions of law are reviewed with no deference to the lower court (de novo review) and pure questions of fact are reviewed with high deference to the lower court, in other words, for clear error. A determination of a child’s habitual residence is nearly entirely fact based; once the trial court determines that a totality-of-the-circumstances standard is appropriate, the remaining determinations depend on those individual circumstances. Such determinations should be judged on appeal by a clear-error review standard, highly deferential to the fact finder. Accordingly, the Court affirmed the Sixth Circuit’s judgment that the District Court’s findings were not clearly erroneous and that the District Court’s Return Order should be upheld.