(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. Id. Monasky testified that, thereafter, Taglieri continued to hit her and force her to have sex. Id.
In May 2014, Monasky became pregnant with A.M.T. Id. Taglieri moved three hours away from Milan to take a job in Lugo in June 2014. Id. The separation combined with Monasky’s difficult pregnancy made their relationship more difficult. Id. Monasky then researched for American divorce attorneys and healthcare and childcare options in the United States. Id. However, at the same time, Monasky and Taglieri prepared for A.M.T.’s arrival and explored childcare options in Italy. Id.
In February 2015, Monasky explored moving back to the United States and emailed Taglieri about pursuing a divorce. Id. Two days later, Monasky delivered A.M.T. by emergency cesarean section with Taglieri and Monasky’s mother present. Id. After leaving the hospital, Monasky, A.M.T., and Monasky’s mother remained in Milan, and Taglieri went back to Lugo. Id.
In March 2015, Monasky informed Taglieri that she wanted to get a divorce and move back to the United States. Id. However, Monasky went to Lugo to stay with Taglieri a few days later. Id. Taglieri claimed that the two reconciled in Lugo, which Monasky denied. Id. While in Lugo, they jointly started applications for passports for A.M.T. from both Italy and the United States. Id. After another argument, Monasky went to the police with A.M.T. looking for shelter in a safe house and informed the police that Taglieri was abusive. Id. After discovering Monasky and A.M.T.’s absence, Taglieri contacted the police to rescind his permission for A.M.T.’s American passport. Id. at 407. Monasky left for America with eight-week-old A.M.T. two weeks later. Id.
In Italian court, Taglieri successfully filed an action to cut off Monasky’s parental rights. Id. In the District Court for the Northern District of Ohio (the “District Court”), Taglieri filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), incorporated into U.S. federal law by the International Child Abduction Remedies Act, for the return of A.M.T. Id. The Hague Convention prioritizes a child’s habitual residence in its goal of deterring spouses from abducting children from a marriage that was formerly unified. Id. at 405. The District Court ruled in favor of Taglieri, finding that Italy was A.M.T.’s habitual residence. Id. at 405, 409. The District Court based its decision on the determination that Monasky and Taglieri had the intent to raise A.M.T. in Italy rather than the United States. Id. at 409.
Monasky appealed to the Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) but had to return A.M.T. to Italy after her motion for a stay pending appeal was denied. Id. at 407. The Sixth Circuit affirmed the District Court’s decision. Id. at 408. The Sixth Circuit treated the determination of A.M.T.’s habitual residence as a question of fact and reviewed the District Court’s decision under the clear-error standard, which requires the court to be highly deferential to the lower court’s finding. Id. The Sixth Circuit found it correct, under the rule of the Sixth Circuit case Ahmed v. Ahmed, that the District Court looked to the shared intent of the parents in making its decision, because A.M.T. is too young for the court to apply the first approach for determining a child’s habitual residence—place where a child has acclimated. Id. at 407–08.
TEST TO DETERMINE “HABITUAL RESIDENCE”
Monasky argues that based on the Hague Convention’s text and context, courts should only grant a request to return a child to a state if the parents actually agreed that the child should live in that state. Brief for Petitioner, Michelle Monasky at 28–29. She maintains that it is impossible to determine what the parents’ shared intent is absent actual agreement between the parents about where to raise the child. Id. Monasky argues that the Hague Convention’s text supports a requirement of actual agreement because no residence can be “habitual” if there is no meaningful connection between the child and the place. Id. at 31. Thus, unlike a child’s domicile, which merely mirrors that of the parents, habitual residence incorporates notions of “continuity and settled purpose” that only social integration with the surroundings or the parents’ intent can satisfy. Id. at 32. Monasky furthers that it would be nonsensical for a court to hold that both parents intended for a child to live in a given state when the parents did not agree on where the child should live. Id. at 28–29.
Monasky also contests the Sixth Circuit’s assumption that every child must have a habitual residence. Id. at 41–42. She argues that the Hague Convention does not sanction thrusting a habitual residence on a child who lacks social, cultural, and linguistic knowledge of the state that a court designates. Id. Indeed, Monasky continues, the Hague Convention is intended to provide a child with a stable environment, so it sanctions removal where the child is being removed from an unstable environment. Id. In any event, Monasky stresses, A.M.T. was not habitually residing in Italy at the time that Monasky returned with A.M.T. to the United States. Id. at 49. She argues that A.M.T.’s multiple residences in Italy, the domestic-violence threat, and Monasky’s intention to return to the United States as soon as A.M.T.’s passport became viable are strong evidence, taken together, that Monasky firmly intended to raise A.M.T. in the United States. Id. at 51–52.
Taglieri counters that the Hague Convention’s text and context require courts to determine habitual residence in light of all available facts. Brief for Respondent, Domenico Taglieri at 23. He argues that the parents’ intent is only one factor that courts may consider, and thus an actual-agreement requirement would obscure the fact-sensitive inquiry that the Hague Convention drafters contemplated. Id. at 32–33. Taglieri continues that courts must also consider facts illustrating a child’s ties to the state, such as the child’s length of residence, school enrollment, language competency, social activities, immigration status, and reasons why the child was present in a state. Id. at 36–37. This fact-sensitive reading, Taglieri stresses, accords with foreign courts’ interpretations of the habitual residence requirement, which are due significant weight. Id. at 33–34.
Taglieri furthermore argues that requiring parents’ actual agreement would under-protect children involved in custody disputes because the parents are unlikely to come to any agreement. Id. at 41. Thus, Taglieri continues, if actual agreement were the right test, then because it is so difficult to satisfy, it would create a presumption that a child has no habitual residence when one parent removes the child to a foreign state. Id. This presumption, Taglieri concludes, is contrary to the Hague Convention’s fundamental goal to prevent one parent’s removal of a child in violation of the other parent’s custody rights. Id. at 40. Moreover, Taglieri maintains that because the District Court properly applied a detailed analysis of all the relevant facts, the Supreme Court should uphold the judgment that A.M.T. be returned to Italy. Id. at 55.
STANDARD OF REVIEW
Monasky argues that appellate courts should review lower courts’ habitual-residence determinations de novo. Brief for Petitioner at 19. Monasky argues that Pierce v. Underwood controls the standard-of-review question. Id. According to Monasky, under Pierce, appellate courts review de novo if (1) a statute so requires, (2) appellate courts have historically done so, or (3) appellate courts are better positioned than lower courts to rule on the issue under review. Id. Monasky continues that although neither the Hague Convention nor Congress have defined habitual residence, the Hague Convention’s implementing statute, 22 U.S.C. § 9001(b)(3)(b), recognizes the need for uniformity in the law between the United States and other signatories. Id. at 19–20. Uniformity, Monasky argues, requires de novo review because any less searching standard would permit lower courts to rule differently on the same facts. Id. at 20–21. Moreover, Monasky contends, American appellate courts universally applied de novo review until the Fourth Circuit and Sixth Circuits’ unexplained deviations. Id. at 21–22.
Monasky further maintains that appellate courts are better positioned to rule on habitual residence because lower courts cannot apply the rule without guidance. Id. at 23. Monasky continues that habitual residence is like probable cause and reasonable suspicion, determinations of which appellate courts also review de novo. Id. Thus, Monasky concludes that the Sixth Circuit was wrong to rely on the Hague Convention’s explanatory report stating that habitual residence is a question of pure fact, because determining a child’s habitual residence requires examining facts through a “complex of values”— stability, continuity, and settled purpose. Id. at 27.
Taglieri counters that U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC is controlling on the standard-of-review issue because a determination of habitual residence involves mixed questions of law and fact. Brief for Respondent at 46. But when a lower court’s decision hinges primarily on interpreting facts, Taglieri continues, appellate courts must apply the clear-error review standard. Id. Taglieri contends that habitual residence is fact-sensitive because although courts often consider evidence of the parents’ intent and the child’s ties to a state, courts are not limited to these sources of evidence. Id. at 36–37. Responding to Monasky’s statute-based argument, Taglieri argues that Congress’s policy of uniformity with other signatory states does not require de novo review of habitual residence; it merely stated Congress’s desire that American courts give some precedential weight to courts of signatory states. Id. If anything, Taglieri argues, Congress’s preference for uniformity militates in favor of a clear-error review standard because foreign courts have also treated habitual-residence determinations as fact intensive. Id.
Finally, contrary to Monasky’s argument that appellate courts are better positioned to determine habitual residence, Taglieri maintains that the fact sensitivity of habitual residence precludes extensive appellate review. Id. at 51. Moreover, Taglieri argues, habitual residence is fundamentally different from reasonable suspicion and probable cause, because unlike constitutional rules, habitual residence does not require any case-by-case development of the law that would justify intrusive appellate oversight. Id. at 52.
ENSURING CHILDREN ARE PROTECTED UNDER THE HAGUE CONVENTION
Sanctuary for Families and three other non-profit organizations (“Sanctuary for Families”), in support of Monasky, argues that the term “habitual residence” must be interpreted to further the Hague Convention’s purpose—protecting children’s best interests. Brief of Amicus Curiae Sanctuary for Families et al., in Support of Petitioner at 7–9. Sanctuary for Families notes that the nature of international child abduction has shifted from involving disappointed parents following a custody dispute to those involving parents fleeing domestic violence. Id. at 3–4. Highlighting that domestic violence has recently increasingly occurred in international child-abduction cases, Sanctuary for Families contends that the court should interpret “habitual residence” to inhibit returning children to abusive situations. Id. at 3, 8. Adopting an interpretation that returns children to abusive environments, Sanctuary for Families asserts, is harmful and could potentially subject children to further abuse. Id. at 8. Sanctuary for Families points out that domestic-violence victims often hide their actual intentions to leave their abusive partners and guarantee their safety and their children’s safety. Id. at 12–13. Sanctuary for Families emphasizes that the actual-agreement standard is more likely to reflect the true intentions of parents rather than simply their observable actions. Id. at 14–15.
The American Academy of Matrimonial Lawyers (the “Academy”), in support of Taglieri, counters that because the Hague Convention’s goal is to shield children from the harm caused by unjust removal or retention, it was intended to promptly send abducted children back to the state of their habitual residence. Brief of Amicus Curiae American Academy of Matrimonial Lawyers (“Academy”), in Support of Respondent at 9–10. To achieve that goal, the Academy contends, the Court should look at the common meaning of habitual residence—where the child “customarily lives.” Id. at 23, 28. The Academy asserts that a common-meaning approach to habitual residence avoids the unacceptable determination that a child does not have a habitual residence—a determination that would undermine the goals of the Hague Convention. Id. at 21, 23–24. The current rules that assess the acclimatization of a child and the shared intent of his or her parents, the Academy maintains, are ineffective in determining habitual residence: young children are typically unable to acclimatize, and shared parental intent cannot always be proved. Id. at 20, 24.
DETERRING INTERNATIONAL CHILD ABDUCTION
Sanctuary for Families asserts that the actual-agreement standard furthers the goal of uniformity in interpreting the Hague Convention. Brief for Sanctuary for Families et al. at 15–16. Sanctuary for Families emphasizes that courts in the United Kingdom, Australia, Canada, and Hong Kong use the shared-parental intent standard as a crucial factor in their determinations of habitual residence. Id. at 16. Furthermore, Sanctuary for Families argues that uniformity across jurisdictions helps deter parents from abducting their children to shop for forums across courts in different states in order to find a more favorable forum for ruling on custody disputes. Id.
The Academy counters that promptly returning children to the state of their habitual residence would deter parents from forum shopping. Brief of the Academy at 11. The Academy states that the Hague Convention strives to simply return the child home—not to determine the custodial rights of either parent. Id. Instead, the Academy explains that the Convention permits a state to only determine where to return the child, so that the state of the child’s habitual residence can then decide on custodial rights. Id. at 11–12. Furthermore, the Academy emphasizes that when it is uncertain whether an abducted child will be promptly returned to a state that will rule on custodial rights, a parent will feel encouraged to abduct a child to another state before the child can acclimate to the old environment. Id. at 25. As a result of this uncertainty, the Academy contends, there will be contentious custody orders, international uncertainty surrounding the Hague Convention, and instability for children and parents in determining custodial and access rights. Id. at 25–26.
- Sabrina Eaton, U.S. Supreme Court to Hear International Child Custody Dispute from Cleveland Area, Cleveland.com (June 10, 2019).
- Gina Carrano, High Court Picks Up Case of U.S. Mom on the Run, Courthouse News Service (June 10, 2019).
- Kimberly Strawbridge Robinson, Justices Will Take International Child Custody Case, Bloomberg Law: Big Law Business (June 10, 2019).
- Richard Wolf, International Child Custody Battle Between Ohio and Italy Will Get Supreme Court Hearing, USA Today (June 10, 2019).