International custody cases: Follow the bouncing baby

This fall, the U.S. Supreme Court will hear a case that exposes the complications inherent in determining the "habitual residence" of a baby born to an estranged international couple. Monasky v. Taglieri, 907 F.3d 404 (6th Cir. 2018), involves an American mother and an Italian father whose daughter was born in Italy but brought to the United States when she was eight weeks old over the father's objection.

In family law, "home state" means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. "Habitual residence" is the location where a child has acclimatized and feels settled. Because that can't happen in just eight weeks, the law instead looks to where the parents intended the child to live. In Monasky, the Supreme Court will consider parental intent and level of appellate review.

Italian Domenico Taglieri and American Michelle Monasky married in 2011 in Illinois. In 2013, they moved to Italy but their relationship was increasingly fraught with discord. Monasky claimed physical abuse, including forced sexual relations, and in February 2015 she investigated a move back to the United States. She asked Taglieri for a divorce. The next evening, she delivered their baby.

Both Monasky and Taglieri began applications for Italian and American passports for the baby, but within weeks of her daughter's birth Monasky sought shelter in a safe house, alleging spousal abuse. In response, Taglieri revoked his permission for the baby's U.S. passport. Monasky fled to the United States with the 8-week-old child.

An Italian court terminated Monasky's parental rights, and the U.S. District Court for the Northern District of Ohio granted Taglieri's petition for the baby's return under the Hague Convention. The 6th U.S. Circuit Court of Appeals sitting en banc affirmed. The U.S. Supreme Court denied Monasky's motion for a stay pending appeal and the baby was returned to Italy.

The Supreme Court agreed on June 10 to hear Monasky's appeal, which argues that the 6th Circuit ruling "deepened an existing circuit split on the standard of review to be applied to a district court's habitual-residence determination." The two questions before the court are as follows:

(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 1st Circuit has held, or under clear-error review, as the 4th and 6th circuits determined; 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.

Ninety-nine countries, including the United States and Italy, have signed the Hague Convention on the Civil Aspects of International Child Abduction. Federal law, through the International Child Abduction Remedies Act, implements the Hague Convention. Under these laws, a parent may petition a federal or state court to return abducted children to their country of habitual residence if the petitioning parent can prove the child was "wrongfully removed." The Hague Convention defines wrongful removal as taking a child in violation of custodial rights "under the law of the State in which the child was habitually resident immediately before the removal." There does not need to have been a pre-existing custody order to satisfy the Hague Convention's "wrongful removal" definition.

The 6th Circuit, in upholding the lower court's ruling, stated, "Who wins turns on who decides. The Hague Convention places the child's habitual residence front and center in trying to achieve its goal of discouraging spouses from abducting the children of a once-united marriage." The court cited Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), which held that the factual inquiry should first look at "whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child's perspective." When the child is too young to form the kinds of ties that establish acclimatization, courts should determine the "shared parental intent of the parties" in deciding the child's habitual residence.

The appellate court held there was sufficient factual support for the lower court's finding that Monasky and Taglieri intended to raise their daughter in Italy. Using the second prong of the Ahmed standard, the lower court had looked at the record as a whole, noting Monasky's employment in Italy, her application for an Italian driver's license, the parents' purchase of items necessary to raise the child in Italy, Monasky's scheduling of routine check-ups for the baby, the fact that she explored child-care options in Italy, and their invitation to an American family to visit them.

"Call our standard of review what you will -- clear-error review, abuse-of-discretion review, five-week-old-fish review -- we have no warrant to second-guess [the lower court's] well-considered finding," the appellate court decided.

This week, a California appellate court reaffirmed that the Uniform Child Custody Jurisdiction and Enforcement Act (Family Code Section 3400 et seq.) provides a state with jurisdiction to make an initial child custody determination if it is the child's home state on the date the proceeding commenced. Once an "appropriate state" court -- one having jurisdiction under Family Code Section 3421, subdivision (a) -- has made a child custody determination, that court obtains exclusive, continuing jurisdiction. In re E.W., 2019 DJDAR 7105 (Cal. App. 2nd Dist., July 29, 2019). This ruling provides support for the 6th Circuit Monasky holding.

In her brief, Monasky doesn't argue that the lower court used an erroneous standard, but that the trial judge's findings were incorrect. The district court's 30-page factual decision was thorough and comprehensive, and its ruling appropriately deferential to those findings of fact. Monasky will have difficulty meeting an abuse of discretion or clear mistake standard of review. She should demand de novo review, although justification for that standard is not entirely clear. Monasky could be asking the court to disregard the Hague Convention entirely and base its decision instead on what is in the child's best interest.

In the middle of legal wrangling over the Hague Convention, the nation's highest court could be asked to decide the issue according to the best outcome for the child. That argument could go this way: Taken from Italy at 8-weeks-old, the child spent extended time in the United States before being returned to Italy. She acclimated to Ohio. Her mother credibly describes instances of domestic violence that caused her to seek shelter. That fact should affect the residence decision. Without de novo review, however, the court may not even consider it. The case is all about the Hague Convention and this child, not the child's mother.

Still, if the court's majority believes that being raised in the United States by her American mother is fundamentally in the child's best interest, they will find a way to justify de novo review and fashion a rationale that supports the decision. 