US high court got in right in international child abduction case

Last week, in Monasky v. Taglieri, the U.S. Supreme Court handed down a much-anticipated ruling involving the Hague Convention on the Civil Aspects of International Child Abduction. 2020 DJDAR 1560 (Feb. 25, 2020).

Domenico Taglieri and Michelle Monasky married in 2011 in America. In 2013, they moved to Italy. Their relationship was rocky almost from the start. Monasky claimed Taglieri physically abused her and forced sexual relations. But as in many dysfunctional relationships, it nevertheless produced a child. In 2015, Monasky began investigating a move back to the United States, and she asked Taglieri for a divorce. Two days later, she delivered their daughter, a baby girl, A.M.T.

The couple briefly lived together in the weeks after the birth. Taglieri alleges they attempted reconciliation; Monasky disagrees. Both parents began applications for Italian and American passports for the baby, but Monasky soon sought shelter in a safe house after an argument. She did not apply for any protection for herself and A.M.T from the Italian courts. In response, Taglieri revoked his permission for the baby's U.S. passport. Monasky fled to the United States with their 8-week-old child. At the time, the baby had already lived in six places.

Taglieri filed a lawsuit in a federal court in Ohio, asking the judge to order his daughter's return to Italy. The court agreed with him that A.M.T.'s "habitual residence" was Italy and ordered that she be returned to that country. The 6th U.S. Circuit Court of Appeals upheld that order. A.M.T., who was by then two years old, traveled back to Italy and has stayed there while her mother's appeals were pending.

In her petition for writ of certiorari to the Supreme Court, Monasky argued that the 6th Circuit should have used the de novo standard of review applied by seven other circuits to lower courts' habitual-residence determinations, rather than a clear-error review. She also challenged the lower court's parental intent finding and claimed the district court failed to consider her allegation of domestic violence as a relevant factor.

The Supreme Court concluded, in an opinion by Justice Ruth Bader Ginsburg, that the Hague Convention does not define the term "habitual residence." The term "habitual" suggests "a fact-sensitive inquiry, not a categorical one." The court conceded that federal appellate courts have not always used the exact same standard to determine a child's habitual residence, but those standards have shared a "common understanding [that] the place where a child is at home, at the time of removal or retention, ranks as the child's habitual residence." The convention's drafting history and the interpretations of other convention signatories confirm, "that a child's habitual residence depends on the particular circumstances of each case." The court did not seem to give a lot of credence to Monasky's domestic violence allegations.

In the end, the Supreme Court affirmed that "that the habitual-residence inquiry is intensely fact-driven, requiring courts to take account of the unique circumstances of each case" and upheld the 6th Circuit's decision affirming the district court's return order of A.M.T. to Italy.

To recap, although Monasky spent two weeks in an Italian domestic violence shelter, she did not seek protection in Italian courts. She simply packed her bags and left. She prevented Taglieri and A.M.T. from forming and maintaining love, affection and other emotional ties the normally exist between parents and children. By engaging in this selfish conduct, she demonstrated that she was not capable to give A.M.T. the love and affection needed for a baby.

The Supreme Court did not buy her claim that she acted to ensure safe haven for her and the baby, although the court said that "Domestic violence should be an issue fully explored in the custody adjudication upon the child's return." And in any event, the court pointed out, a separate provision of the Hague Convention allows a court to refuse to order a child's return to her habitual residence when there is a "grave risk" that returning would expose the child to physical or psychological harm."

The bottom line is that there are no winners in cases like these. Parents spent six years fighting; no one got what they wanted -- and it must have cost a small fortune. Strike that, it must have cost a large fortune. No new law has been made; the old and established provisions of the Hague convention were re-affirmed, and A.M.T. will grow up knowing the discourse all too well. 