Yesterday, February 25, 2020, the Court published its decision in Monasky v. Taglieri, a case regarding the application of the Hague Convention on the Civil Aspects of International Child Abduction—or the “Hague Abduction Convention” for short. Under the Hague Abduction Convention, the U.S. is obligated to facilitate the return of a child to his or her country of “habitual residence” in international custody disputes.
The Court was confronted with determining how a U.S. court should decide questions concerning a child’s country of habitual residence in cases where the parents of a child live in different countries and argue that the child should remain in their custody, and not the other parent’s.
For more details on the factual and legal background of the case, please read our blog from last month.
In Monasky, the child’s mother argued that her three-month-old daughter was too young to have established a country of habitual residence. However, the lower courts held that in such cases, the child’s place of habitual residence may be evidenced by the shared intent of the parents to make one country the child’s home. The mother tried to argue that an “actual agreement” about the child’s home should be required for purposes of determining a child’s country of habitual residence.
In a unanimous decision, the Supreme Court held that the Hague Abduction Convention does not require proof of an actual agreement about the child’s habitual residence when determining child custody matters under the Hague Abduction Convention.
Justice Ruth Bader Ginsburg authored the opinion for the majority—comprised of Chief Justice Roberts with Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh joining. Justices Thomas and Alito issued concurring opinions.
What Is a Child’s Habitual Residence After Monasky?
In its decision, the Supreme Court recognized that the issue of a child’s habitual residence is “a fact-sensitive inquiry, not a categorical one.” This means that international custody issues hinge on the specific facts unique to each case.
The Hague Abduction Convention doesn’t provide a definition for “habitual residence.” Courts have interpreted the term to generally mean the country where the child usually lives, rather than a place where the child occasionally visits or living situations that are merely “transitory.”
In general, factors that may be relevant to determining a child’s habitual residence include:
- How long a child lived in the country
- Whether the child “acclimatized” to the environment of the country
- The shared intent of the parents for the country to serve as the child’s habitual residence
However, in Monasky, the child was considered too young to have acclimatized to any particular country. When a child is too young to have “habitually” lived somewhere, the shared intent of the child’s parents becomes more important.
Contrary to the mother’s argument, the Supreme Court found that determinations concerning a child’s habitual residence do not require an actual agreement between the parents. The Court reasoned that “[a]n actual-agreement requirement would enable a parent, by withholding agreement, unilaterally to block any finding of habitual residence for an infant. If adopted, the requirement would undermine the Convention’s aim to stop unilateral decisions to remove children across international borders. Moreover, when parents’ relations are acrimonious, as is often the case in controversies arising under the Convention, agreement can hardly be expected.”
DiPietro Law Group, PLLC is Ready to Represent You
Issues concerning international child custody can be very challenging and complex. As you can see, some issues are controversial enough to necessitate a ruling from the U.S. Supreme Court. At DiPietro Law Group, PLLC, our team pays close attention to developments in family law that might impact you and your family’s rights.