child custody

Abbott v. Abbott

Issues

Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction.

 

Petitioner Timothy Abbott and Respondent Jacquelyn Abbott divorced in Chile. The Chilean court granted the mother custody of their son while allowing the father only visitation rights. At the mother’s request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without the agreement of both parents. Without the father’s consent, the mother brought her son to the United States. The father asks the Supreme Court to decide whether the ne exeat order constitutes a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction. A right of custody ruling would mandate return to Chile. This case will primarily impact international child custody battles where one parent abducts a child to or from the United States.

Questions as Framed for the Court by the Parties

The Hague Convention on International Child Abduction requires a country to return a child who has been “wrongfully removed” from his country of habitual residence. Hague Convention art. 12. A “wrongful removal” is one that occurs “in breach of rights of custody.” Id. art. 3. The question presented is: Whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction.

In 1992, Timothy Abbott, a British citizen, married Jacquelyn Abbott, an American citizen, in England. See Abbott v. Abbott, 542 F.3d 1081, 1082 (5th Cir. 2008). Their son was born in the United States in 1995, and the family moved to Chile in 2002. See id. In 2003, Mr. and Mrs.

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Additional Resources

·      Wex: Law about Child Custody

·      Hague Conference: Child Abduction

·      ConflictofLaws.Net: A Divided Opinion on the Hague Abduction Convention

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Monasky v. Taglieri

Issues

(1) When a parent removes a child to a foreign state in a case of disputed custody, and the child was too young to acclimate to her surroundings in the previous state, does the Hague Convention’s “habitual residence” standard require the parents to have actually agreed that they intended to raise the child in the previous state to trigger the Hague Convention’s return remedy?

(2) Must appellate courts review lower court determinations of a child’s habitual residence de novo, under a deferential version of de novo review, or for clear error?

This case arises out of a custody dispute between an Italian father, Domenico Taglieri, and an American mother, Michelle Monasky, whose marriage had deteriorated, and where the mother had removed the child to the United States before a court could determine the parents’ custody rights. To determine whether the child must be returned to Italy, the Supreme Court must decide whether to uphold the Sixth Circuit’s order to return the child based on its affirmation of the district court’s determination that the child habitually resided in Italy. Monasky argues that the Hague Convention’s text supports an actual-agreement standard for habitual residence, and that the Hague Convention does not contemplate courts imposing habitual residence on a child when the child’s situation in the state would be precarious and the child lacks meaningful connections with the state. She further argues that the statute, appellate history, and the mixed legal and factual nature of habitual residence support de novo review. Taglieri responds that the lower courts properly applied a fact-sensitive analysis of the child’s situation in Italy and, furthermore, that if “actual agreement” were required, the Hague Convention would under-protect children in hotly disputed custody cases who most need protection. He also contends that clear-error review should apply because habitual residence issues are more factual than legal, and because such review is more expedient, consistent with the Hague Convention’s aims. The outcome of this case will have implications for international child abduction and custody cases involving claims of domestic violence.

Questions as Framed for the Court by the Parties

(1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.

In 2011, Petitioner Michelle Monasky, an American, and Respondent Domenico Taglieri, an Italian, got married in Illinois where they met. Taglieri v. Monasky at 406. Two years later, they moved to Milan, Italy to pursue their careers. Id. In March 2014, Taglieri hit Monasky in the face.

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