Habitual Residence to be Determined by a “Totality of the Circumstances”
Green Kaminer Min & Rockmore LLP | Feb 28, 2020
Hague Child Abduction Convention
In Monasky v. Taglieri, an American mother abducted a two-month old child from Italy to the United States. The Italian father brought a case pursuant to the Hague Convention on the Civil Aspects of International Child Abduction in the Federal District Court in Northern Ohio alleging that the child’s habitual residence was Italy. The mother argued that due to the history of domestic abuse, marital discord and uncertainty regarding their future together in Italy, absent an actual agreement for the child to be raised in Italy, the court could not find that Italy was the child’s habitual residence.
The District Court ordered the return of the child to Italy finding that the child’s habitual residence was Italy largely based on the fact that the parents had already been living in Italy and had taken sufficient steps to establish the child’s life in Italy prior to the abduction. The Court found that an actual agreement between the parties is not necessary in establishing habitual residence. The mother appealed and the Sixth Circuit Court of Appeals affirmed. The United States Supreme Court then granted certiorari on the issue of habitual residence and standard of review.
It is important to note that this case is the fourth U.S. Supreme Court case to address the Hague Abduction Convention but the first to address the issue of habitual residence, arguably the most important issue in Hague Abduction law. Prior to this case, there had been a circuit split in the U.S. Circuit Courts of Appeal in defining what constitutes habitual residence. A majority of the Circuits, including the Second Circuit, placed a stronger emphasis on the shared intentions of the parents, or what the parents intended with respect to the child’s present and future country of residence, and a weaker emphasis on acclimatization, or the degree to which the child was integrated and comfortable in his/her present environment. Other Circuits placed the emphasis on acclimatization rather than the parents’ intentions unless the child was too young to form any substantial attachment to their environment. At least one Circuit balanced the two tests. The Circuits had also been split on the issue of standard of review with some holding that the review should be for “clear error” and others holding that the review should be “de novo.”
The U.S. Supreme Court held oral argument on December 11, 2019 and issued its decision on February 25, 2020, holding that a child’s habitual residence depends on the totality of the circumstances specific to the case and that the standard of review should be for clear error. Justice Ginsburg, writing for the Court, stated that “[n]o single fact… is dispositive across all cases.” The Supreme Court cited to several international cases to support their ruling that courts should look at both the parents’ intentions as well as the child’s acclimatization among other factors in determining a child’s habitual residence. They provided some guidance, however, in advising that in older children, it may be more important to look to acclimatization factors, such as enrollment in school, immigration status, parental employment, etc., while in younger children, it may be more important to consider parental intentions and any evidence of coercion.
The Supreme Court has effectively handed district court judges broad discretion in making these habitual residence determinations by instituting a “totality of the circumstances” test along with a deferential “clear error” standard of review. Judges are not beholden anymore to a rigid test and appellate courts are not able to conduct a “de novo” review of those decisions.
It is now even more critical for attorneys to become familiar with Hague Convention caselaw around the country and around the world in order to effectively argue either side of the habitual residence issue.
Attorneys at Green Kaminer Min & Rockmore LLP have litigated and consulted on hundreds of Hague Child Abduction Convention matters across the United States. We are well equipped to guide parents and other attorneys through the complex legal world of Hague Convention cases, made even more complicated by the recent U.S. Supreme Court landmark decision in Monasky v. Taglieri.
Richard Min is a partner at Green Kaminer Min & Rockmore LLP and his practice focuses exclusively on Family Law, with a particular specialty on International Child Abduction and high-conflict cross-border custody issues pursuant to the Hague Convention and the UCCJEA.