The Hague Convention on the Civil Aspects of International Child Abduction requires that a child who is abducted from her “habitual residence” be returned to that country, so that the courts there can resolve any custody issues between the child’s parents. As a result of this “automatic return” rule, the determination of the child’s “habitual residence” can be a key decision for U.S. courts reviewing cases brought under the Hague Convention. Today the Supreme Court agreed unanimously that courts should look at all of the circumstances of a child’s case to decide where her habitual residence is. The justices rejected the argument by an American mother that the habitual residence of an infant, who is too young to know where she is or become acclimated to a particular place, can only be established by the agreement of both parents, and they upheld an order requiring the return of the woman’s child to Italy.
The question came to the court in the case of Michelle Monasky, a U.S. citizen who married Domenico Taglieri, an Italian citizen, in 2011. The couple moved to Milan, Italy, in 2013; Monasky gave birth to their daughter, known as A.M.T., in 2015. Monasky contends that she was the victim of domestic violence and investigated the possibility of returning to the United States – including applying for jobs and getting quotes from movers – during her pregnancy. At roughly the same time, Monasky and Taglieri looked for childcare and bought baby gear in Italy and located a larger apartment outside Milan. Shortly after A.M.T was born, Monasky took A.M.T. to a domestic-violence safe house in Italy, where she stayed for two weeks before leaving with the baby for her parents’ home in Ohio.
Taglieri filed a lawsuit in a federal court in Ohio, asking the judge to order his daughter’s return to Italy. The court agreed with him that A.M.T.’s “habitual residence” was Italy and ordered that she be returned to that country, and the U.S. Court of Appeals for the 6th Circuit upheld that order. A.M.T., who was by then two years old, traveled back to Italy and has stayed there while her mother’s appeals were pending.
In an opinion by Justice Ruth Bader Ginsburg, the court began by noting that the Hague Convention does not define the term “habitual residence.” The term “habitual” suggests “a fact-sensitive inquiry, not a categorical one,” the court continued. The federal courts of appeals have not always used the exact same standard to determine a child’s habitual residence, the court conceded, but those standards have shared 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.” The convention’s drafting history and the interpretations of other convention signatories confirm, the court added, “that a child’s habitual residence depends on the particular circumstances of each case.”
Monasky’s argument that an infant’s habitual residence hinges on an actual agreement between her parents, the court stressed, not only is inconsistent with the text of the convention, but would also interfere with the convention’s goal of deterring abductions and facilitating the speedy return of abducted children. If a child’s habitual residence could only be determined through an agreement of her parents – who presumably are estranged – one parent could easily block the child from having any habitual residence simply by refusing to agree. And without a habitual residence, the convention would not apply at all.
The court acknowledged that domestic violence is an “intractable problem in Hague Convention cases involving caregiving parents fleeing with their children from abuse.” But the court emphasized that the habitual-residence question only determines the country where custody proceedings will occur; it does not “dispose of the merits of the controversy over custody. Domestic violence should be an issue fully explored in the custody adjudication upon the child’s return.” And in any event, the court pointed out, a separate provision of the Hague Convention allows a court to refuse to order a child’s return to her habitual residence when there is a “grave risk” that returning would expose the child to physical or psychological harm.
The court then turned to the second question in the case: What standard should an appeals court use to review a trial court’s determination of a child’s habitual residence? The court reasoned that because such a determination rests heavily on the facts of a specific case, appellate courts should overturn it only if it is clearly erroneous. Deferring to the trial court’s determination, the court suggested, “speeds up appeals and thus serves the Convention’s premium on expedition”; it is also consistent with the practice in other countries.
The Supreme Court concluded by explaining that although it might normally send the case back to the lower courts for them to apply the habitual-residence standard that it announced today, such an order “would consume time when swift resolution is the Convention’s objective.” Taglieri filed this lawsuit in U.S. courts when A.M.T. was an infant, the court observed, and she “is now five years old.” Because the proceedings have taken so long already, the district court “had before it all the facts relevant to the dispute” and there is no reason to believe that the district court would have reached a different conclusion, the Supreme Court instead upheld the 6th Circuit’s decision affirming the district court’s return order.
Justice Clarence Thomas filed a concurring opinion in which he agreed with his colleagues “that the habitual-residence inquiry is intensely fact driven, requiring courts to take account of the unique circumstances of each case.” But he would rely primarily on the meaning of the phrase “habitual residence,” without looking at how other signatories to the Hague Convention have interpreted the term.
Justice Samuel Alito also filed a concurring opinion, in which he argued that the trial court’s habitual-residence determination should be reviewed under an even more deferential standard, known as “abuse of discretion.” “As a practical matter,” Alito wrote, “the difference may be no more than minimal. The important point is that great deference should be afforded to the District Court’s determination.”
This post is also published on SCOTUSblog.