March 10, 2021 Feature

Where Is the Child at Home? Determining Habitual Residence After Monasky

Ann Laquer Estin

Introduction

In Monasky v. Taglieri,1 the U.S. Supreme Court answered a question that has troubled the federal circuits for almost 20 years: How should a child’s habitual residence be determined for purposes of the Hague Child Abduction Convention?2 The ruling in Monasky, the Court’s fourth decision regarding the Abduction Convention,3 affirmed the Sixth Circuit and announced an open-ended “totality of the circumstances” standard for making this determination. Monasky shifts the balance away from the focus on parental intentions that had become the majority rule, and should change the approach to deciding habitual residence disputes in many circuits. Perhaps more significantly, the Court also resolved another circuit split by adopting a deferential clear error standard of review for habitual residence disputes.

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