I. Mapping the Circuit Split
The Abduction Convention, which is currently in force in more than 100 countries,4 provides a return remedy when a child has been wrongfully removed or retained away from his or her country of habitual residence.5 Habitual residence is the threshold question in return proceedings under the Abduction Convention, frequently disputed and often outcome-determinative. It is a common (though not often successful) ground for appeal.
Habitual residence is not defined in the Abduction Convention, whose drafters understood the term to present a purely factual question and used it to avoid the technical complexity of legal concepts such as domicile.6 Early cases under the Convention in the United States began to describe factors that courts could consider in determining a child’s habitual residence. In 1993, the Sixth Circuit wrote in Friedrich v. Friedrich that “the court must focus on the child, not the parents, and examine past experience, not future intentions.”7 In 1995, the Third Circuit case of Feder v. Evans-Feder enumerated factors including the child’s circumstances and acclimatization to a place, and also referred to “the parents’ present, shared intentions” regarding their child’s presence in that place.8
With Mozes v. Mozes9 in 2001, the Ninth Circuit put the parental intent factor at the head of the list, defining “shared parental intent” as the touchstone of the inquiry, particularly in cases disputing whether the child’s habitual residence had changed. Mozes allowed for the possibility that “unequivocal” evidence of a child’s acclimatization to a new place could lead to a finding that the child had acquired a new habitual residence, even with no proof of shared parental intent, but suggested that this should be an unusual result.10 Over time, courts in a majority of the circuits have followed Mozes, giving primary emphasis and weight to shared parental intent in a range of different types of cases.11
At the same time, courts in the Sixth Circuit retained the child-centered approach first described in Friedrich, and criticized more extreme applications of the Mozes test.12 Between these two poles, courts in the Third and Eighth Circuits continued to consider a range of factors, including both intent and acclimatization.13 In circuits that did not fully embrace Mozes, parental intentions were given greater weight in cases involving infants or very young children, for whom there was rarely evidence of acclimatization to a particular place.14
Beyond different views of the legal test for habitual residence, the circuit courts have disagreed about the proper standard for appellate review. Mozes held that habitual residence determinations should be treated as a question of law, subject to de novo review,15 and several other circuits followed this approach.16 Another group applied more deferential review under a clear error standard.17 In the majority of these cases, lower court rulings have been affirmed.18
Even as the divide between the circuits seemed to deepen, the Seventh Circuit claimed a middle ground. Redmond v. Redmond19 reversed a trial court return order based on parental intent, where the court’s “assessment of the observable facts on the ground” showed that the child’s life was “firmly situated in Illinois.”20 After reviewing the positions taken in different circuits on the significance of “parental intent,” the court said:
Conventional wisdom thus recognizes a split between the circuits that follow Mozes and those that use a more child-centric approach, but we think the differences are not as great as they might seem. Although the Third, Sixth, and Eighth Circuits focus on the child’s perspective, they consider parental intent, too. . . .
The same is true on the other side. Although the Mozes framework focuses on the shared intent of the parents, the child’s ‘‘acclimatization’’ in a country has an important role to play. . . .
In substance, all circuits—ours included—consider both parental intent and the child’s acclimatization, differing only in their emphasis. The crux of disagreement is how much weight to give one or the other, especially where the evidence conflicts.21
Considering the case before it, the Redmond court described the parents’ last shared intent as merely “one fact among others” and concluded that “nothing in our caselaw justifies the overwhelming weight the district court gave the parents’ last shared intent at the expense of the undisputed evidence of [the child’s] acclimatization.”22 More broadly, the court observed that “the concept of ‘last shared parental intent’ is not a fixed doctrinal requirement, and we think it unwise to set in stone the relative weights of parental intent and the child’s acclimatization.”23
II. Monasky v. Taglieri
Despite deciding a series of other questions under the Abduction Convention, the Supreme Court declined multiple invitations to resolve the split in habitual residence cases.24 Monasky illustrates the intensity with which these disputes are litigated, with a long evidentiary hearing in the trial court and appellate arguments before a panel and the full en banc Sixth Circuit Court of Appeals before reaching the Supreme Court. When the case arrived, it presented a somewhat unusual vehicle for resolving the habitual residence question. Rather than correcting an error, the Supreme Court rejected the appellant’s arguments unanimously and affirmed the outcome of the courts below.
A. Trial and Appeal: Litigating Habitual Residence
After meeting and marrying in the United States, Domenico Taglieri and Michelle Monasky moved to Italy, where their daughter was born in February 2015. Eight weeks later, Monasky moved home to the United States with the child. In response, Taglieri filed an action in Italy to terminate Monasky’s parental rights, and a petition in the Northern District of Ohio seeking a return order under the Abduction Convention.25
In order to prevail, Taglieri had the burden to establish that the child was habitually resident in Italy at the time Monasky moved her to the United States. Monasky argued the child had no habitual residence at that point because the couple’s lives in Italy were unsettled and they had no agreement or shared intent to raise their daughter there.26 After a four-day evidentiary hearing, the trial judge rejected this argument. The court concluded, “considering the record as a whole,” that Monasky had planned to live in Italy indefinitely at the time the child was born and that parental conflict did not prevent the infant from acquiring a habitual residence there.27 Based on the facts established at trial, the couple had “established a marital home in Italy, and resided in that place with the child until Monasky departed with her to the United States.”28
A divided three-judge panel affirmed the trial court on appeal, with the majority viewing the case as relatively simple, writing: “In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence.”29 Although a recent precedent in the circuit had held that shared parental intent was a relevant factor in determining an infant’s habitual residence,30 the majority rejected Monasky’s argument that the trial court should have required proof of shared parental intent in this case.31
In a subsequent en banc rehearing, the trial court was affirmed once again by a divided vote.32 In this second review, the Sixth Circuit Court of Appeals emphasized the factual nature of the habitual residence determination and observed that the evidence on this point was divided. Applying a clear error standard, the majority opinion articulated a strong rule of deference: “[W]e leave this work to the district court unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’”33 Pointing out that the trial judge had considered whether the parents had a shared intent as to the child’s habitual residence, they declined to “rebalance the relative weights assigned” to different factors.34 As in the earlier ruling, the en banc court expressly rejected Monasky’s argument that establishing an infant’s habitual residence requires proof that the parents had reached a subjective agreement, or “meeting of the minds,” about the child’s future home.35
The en banc rehearing in Monasky produced one concurring and several dissenting opinions.36 The judges had different views of how their precedents should be applied to habitual residence disputes involving infants, and different views on the correct standard of review for habitual residence determinations.37 As the Supreme Court later noted, none of the 18 judges who heard the case on appeal agreed with the argument that establishing the habitual residence of an infant should require proof of an “actual agreement” between the parents.38
B. Supreme Court: Setting the Legal Standard
The Supreme Court granted review in Monasky to decide two questions: whether a subjective agreement between an infant’s parents is necessary to establish habitual residence for an infant who is too young to acclimate to her surroundings and what standard of review applies to habitual residence determinations.39 On both of these questions, the Court affirmed the Sixth Circuit.40
Justice Ginsburg’s majority opinion emphasized what the federal circuits have in common, describing the split as only “differences in emphasis among the Courts of Appeals,” and stating that the courts “share a ‘common’ understanding: The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”41 Describing this determination as a “fact-driven inquiry, sensitive to the unique circumstances of the case and informed by common sense,”42 the Court characterized the legal standard as a “totality of the circumstances” test. In addition, it also concluded that the determination of habitual residence is primarily a task for the fact-finding court, subject to appellate review under a clear error standard.43
Beyond announcing this “totality of circumstances” test, the Court gave only limited guidance in Monasky regarding the particular facts to be weighed and balanced.44 For older children, the Court suggested that “facts indicating acclimatization will be highly relevant,” with a footnote listing some of the factors that courts had considered in these cases, including:
a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child’s new country, language proficiency, and location of personal belongings.45
At the same time, the Court also affirmed that “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are also relevant considerations.”46 Justice Ginsburg invoked common sense, which “suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.”47
The Court was emphatic in its rejection of Monasky’s primary argument, writing: “The bottom line: There are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement requirement for infants.”48 Among its reasons for rejecting an “actual agreement” requirement, the Court pointed out that it would leave many infants with no habitual residence, and therefore outside the protections of the Convention.49
Justice Ginsburg noted Monasky’s argument about the need to “protect children born into domestic violence.”50 Though she described domestic violence as an “intractable” problem in cases under the Abduction Convention, she did not agree that an actual-agreement requirement was an appropriate solution.51 Her opinion for the Court suggested that if “an infant lived in a country only because a caregiving parent had been coerced into remaining there,” those circumstances should “figure in the calculus” of the habitual residence determination.52 Justice Ginsburg also noted that a court may refrain from ordering return under Article 13(b) of the Convention when there is a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” and that the trial court had considered and rejected Monasky’s Article 13(b) argument.53
On the standard of review question, the Court agreed that habitual residence determinations present a mixed question of law and fact, “albeit barely so.”54 The majority opinion went on to observe: “Once the trial court correctly identifies the governing totality-of-the-circumstances standard, however, what remains for the court to do in applying that standard . . . is to answer a factual question: Was the child at home in the particular country at issue?”55 Viewing this as “a task for factfinding courts, not appellate courts,” the Court concluded that habitual residence determinations “should be judged on appeal by a clear-error review standard deferential to the factfinding court.”56 The opinion points out that this rule also serves the purposes of the Convention because it expedites the appellate process.57
Following the same approach taken in the Court’s previous cases under the Abduction Convention, the majority opinion in Monasky considered the Convention’s text, the drafting history and Explanatory Report, and the approaches taken to habitual residence in decisions of other treaty countries.58 As in previous Abduction Convention cases, the United States had filed an amicus brief describing the views of other contracting states and participated in the arguments before the Court.59 The Court noted that, on both of the issues decided, its ruling conforms to the practice of the U.S. treaty partners.60
III. After Monasky: The New Landscape
As a procedural matter, both the fact-based totality of the circumstances test and the clear-error standard of review adopted in Monasky should reduce the numbers of appeals in Abduction Convention cases. As Professor Robert Spector has observed, however, one consequence of a highly fact-based standard is that it will be “rarely possible to decide habitual residence on a motion for summary judgment.”61 In disputed habitual residence cases, we can confidently predict that long evidentiary hearings before the fact-finding court will continue. The party seeking return will continue to bear the burden of proof as to habitual residence,62 and trial court rulings will need to reflect the different factors that the court has considered in determining habitual residence.63
As a substantive matter, the Court has made clear that parental intentions may be relevant to the determination of habitual residence but should not be dispositive. Parents will certainly continue to dispute and litigate their intentions as to the child’s residence, and fact-finding courts will need to weigh that along with other evidence presented. Family lawyers are already deeply familiar with this kind of open-ended multifactor legal standard, which is typical of many issues that family courts decide.64 It still remains to be seen, however, to what extent courts will attempt to transplant into the new reality the same kinds of heuristics they relied on before Monasky.
In broad terms, the Court’s opinion aligns most closely with the approach taken by the Seventh Circuit in Redmond,65 and with cases in the Third and Eighth Circuits that directed courts to examine acclimatization from the child’s perspective as well as parental intent.66 In the Ninth Circuit, where the Mozes test originated, courts had begun to acknowledge the “international consensus” that courts should look at many factors in determining habitual residence.67 But Monasky requires the courts that have followed Mozes to go further, and abandon their rule prioritizing parental intentions.
Monasky seems likely to have its greatest impact in those circuits that have relied heavily on shared parental intent. The subsidiary rules built on the “shared intent” doctrine must be reconsidered, and some of the growing legal complexity surrounding the doctrine should diminish, if not disappear.68 Courts clearly may no longer apply or impose presumptions, such as a requirement for “unequivocal” evidence of acclimatization when there was no proof of a shared intention to change the child’s habitual residence.69 Given the Supreme Court’s insistence on a totality-of-the-circumstances standard, and its explicit rejection of categorical tests and predetermined formulas, the lower courts also should not attempt to preserve the legal gloss built into their pre-Monasky jurisprudence. Several cases decided in the months after Monasky suggest that courts have had trouble breaking these old habits.70
On balance, in cases involving children who have lived in a new country for periods of two or three years, it should be somewhat more likely that the new country will be found to be the child’s habitual residence.71 Conversely, it may be less likely that a child’s habitual residence will be deemed to have shifted based on mixed evidence of parental intentions in cases in which the child has lived for only a few months in a new place.72 But in many cases, the evidence and analysis will not change significantly as courts embrace the new standard.73
One useful example, Grano v. Martin,74 emerged from the U.S. District Court for the Southern District of New York two weeks after the Supreme Court ruling in Monasky. Faced with a dispute over habitual residence, the trial court noted: “Following Monasky, the parties’ last shared intent is still a relevant consideration, although it is not dispositive.”75 In its detailed findings of fact and conclusions of law, the court reviewed the evidence from a five-day hearing, and its opinion addressed both the parties’ intentions regarding their child’s residence and other objective facts suggesting that the child “usually or customarily lived” in Spain.76
In Smith v. Smith,77 the Fifth Circuit Court of Appeals noted the recent Monasky decision and stated that “to the extent that our circuit’s prior caselaw . . . has prioritized the parents’ shared intent over other factors, we overrule that emphasis.”78 In the case before it, however, which challenged the district court’s conclusion that the parents had no shared intention that Argentina would become their children’s habitual residence during the two years the family lived there, the appellate court upheld the ruling below.79 Concluding that the lower court had “determined and considered all the relevant facts,” the appellate court applied Monasky’s totality of the circumstances standard to those facts and held that the petitioner had not met the burden of establishing that Argentina was the children’s habitual residence.80
Looking beyond the question of habitual residence, the Court’s embrace of a deferential standard of review has begun to influence other types of appeals under the Abduction Convention. Two weeks after Monasky was decided, the First Circuit Court of Appeals relied on the decision to adopt a “clear error” standard of review for other Convention issues based on complex factual determinations, such as the objections to return based on a child being settled after more than a year in the United States under Article 12 or a grave risk of harm to the child under Article 13(b).81
With Monasky, the Supreme Court has resolved a long-standing disagreement under the Hague Abduction Convention, with the potential to affect hundreds of families each year. Although the federal courts do not keep data on the numbers of return proceedings filed under the Abduction Convention, the Office of Children’s Issues (OCI) in the U.S. State Department receives reports of more than 400 incoming return and access cases each year.82 Based on reports appearing in Westlaw, the federal trial and appellate courts heard and issued decisions in at least 50 separate cases under the Abduction Convention in 2019, with habitual residence among the most frequently disputed questions to be decided.83 The Court’s ruling may not reduce those numbers, but it provides important guidance for judges, lawyers, and parents.
1. 140 S. Ct. 719 (2020).
2. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 19 I.L.M. 1501–05 (1980) [hereinafter Abduction Convention]. As of June 2020, 101 countries have ratified or acceded to the Convention. See Status Table, 28: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conf. on Priv. Int’l L., (July 19, 2019), https://www.hcch.net/en/instruments/conventions/status-table/?cid=24. Of those, the Convention was in force between the U.S. and 79 partner countries. See U.S. Hague Convention Treaty Partners, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html (last visited Oct. 20, 2020).
3. Abbott v. Abbott, 560 U.S. 1 (2010); Chafin v. Chafin, 568 U.S. 165 (2013); Lozano v. Montoya Alvarez, 572 U.S. 1 (2014). See generally Ann Laquer Estin, The Hague Abduction Convention and the United States Supreme Court, 48 Fam. L.Q. 235 (2014).
4. See Status Table, 28: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, supra note 2. As of April 2020, the United States had a partner relationship under the Convention with 79 of these countries. See U.S. Hague Convention Treaty Partners, supra note 2; U.S. Dep’t of State, Annual Report on International Child Abduction 6 (2020), https://travel.state.gov/content/dam/NEWIPCAAssets/2020%20Annual%20Report%20and%20Appendices%201MAY2020.pdf.
5. Abduction Convention, supra note 2, art. 12.
6. Monasky, 140 S. Ct. at 727. See Elisa Pérez-Vera, Hague Conference on Private International Law, Explanatory Report ¶ 66, at 445, III Actes et Documents de la Quatorzième Session (1980), https://assets.hcch.net/docs/05998e0c-af56-4977-839a-e7db3f0ea6a9.pdf.
7. 983 F.2d 1396, 1401 (6th Cir. 1993). The judge in Friedrich wrote that habitual residence cannot be quickly changed, requiring “a change in geography and the passage of time” before the disputed removal or retention. Id. at 1402.
8. 63 F.3d 217, 224 (3d Cir. 1995). On balance, the appellate court placed greater weight on what it saw as the parents’ present, shared intention and reversed the trial court’s conclusion. Id.
9. 239 F.3d 1067 (9th Cir. 2001).
10. Id. at 1081. See also Gitter v. Gitter, 396 F.3d 124, 133–34 (2d Cir. 2005) (“[W]e must consider whether, notwithstanding the intent of those entitled to fix the child’s habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted.”).
11. See Nicolson v. Pappalardo, 605 F.3d 100, 103–04 (1st Cir. 2010); Gitter, 396 F.3d at 133–34; Maxwell v. Maxwell, 588 F.3d 245, 251–54 (4th Cir. 2009); Larbie v. Larbie, 690 F.3d 295, 310–12 (5th Cir. 2012); Koch v. Koch, 450 F.3d 703, 710–18 (7th Cir. 2006); Ruiz v. Tenorio, 392 F.3d 1247, 1252–59 (11th Cir. 2004). Larbie reversed the trial court for failing to treat the parents’ shared intentions as the “primary focus” in the habitual residence inquiry. Larbie, 690 F.3d at 311–12. Gitter was remanded so that the court could also consider evidence of the child’s acclimatization under the test described above. See supra note 10.
12. E.g., Robert v. Tesson, 507 F.3d 981, 991 (6th Cir. 2007) (criticizing Ruiz, 392 F.2d 1247, which held that children had not acquired a habitual residence in Mexico despite living there almost three years).
13. E.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 291–98 (3d Cir. 2006); Silverman v. Silverman, 338 F.3d 886, 897–98 (8th Cir. 2003) (en banc); see also Watts v. Watts, 935 F.3d 1142–43 (10th Cir. 2019) (applying test based on Feder, 63 F.3d at 224).
14. E.g., Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017); Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003). In each of these cases, the court denied a petition for a return order because the petitioner was not able to establish that the infant had a habitual residence under either test. Ahmed, 867 F.3d at 688–91; Delvoye, 329 F.3d at 333–34.
15. Mozes, 239 F.3d at 1071–73.
16. Cases approving de novo review include the following: Robert, 507 F.3d at 993; Silverman, 338 F.3d at 897.
17. See, e.g., Taglieri v. Monasky, 907 F.3d 404, 408–09 (6th Cir. 2018); Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009). Cf. Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010) (giving “some deference” to trial court’s determination).
18. Cases that reversed district courts include Feder, 63 F.3d 217, see discussion supra note 8; Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012), see discussion supra note 11; Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013), see discussion infra notes 19–23 and accompanying text; and Berezowsky v. Ojeda, 765 F.3d 456, 471–75 (5th Cir. 2014) (finding that the record did not support trial court’s determination that parents had a shared intention regarding the child’s residence).
19. 724 F.3d 729 (7th Cir. 2013). See also Estin, supra note 3, at 247–51.
20. Redmond, 724 F.3d at 743, 744.
21. Id. at 745–46.
22. Id. at 744, 746.
23. Id. at 746. In particular, Redmond suggests that shared intent is a less-useful factor when “‘the parents are estranged essentially from the outset,’” and “when only one parent has the legal right” to fix the child’s place of residence. Id. at 746–47 (citation omitted).
24. See Estin, supra note 3, at 249 n.84. Numerous commentators addressed the problem. See, e.g., Jeff Atkinson, The Meaning of Habitual Residence Under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children, 63 Okla. L. Rev. 647, 661 (2011).
25. See Taglieri v. Monasky, No. 1:15 CV 947, 2016 WL 10951269, at *1, *4 (N.D. Ohio Sept. 14, 2016), aff’d, 876 F.3d 868 (6th Cir. 2017), op. vacated, aff’d on reh’g en banc, 907 F.3d 404 (6th Cir. 2018), aff’d, 140 S. Ct. 719 (2020).
26. Id. at *8–9. This argument relied on several earlier cases involving infants. See id. (citing Delvoye v. Lee, 329 F.3d 330, 331 (3d Cir. 2003); In re A.L.C., 607 F. App’x 658, 662–63 (9th Cir. 2015); and Holmes v. Holmes, 887 F. Supp. 2d 755, 758–59 (E.D. Mich. 2012)); see also supra note 14 and accompanying text.
27. Taglieri, 2016 WL at *9–10.
28. Id. at *10. The court distinguished cases in which the residence of one parent “was of so temporary a nature that the court could not find it to be a habitual residence.” Id. Note that the court also concluded that Taglieri was exercising custody rights at the time of the removal, and that Monasky had not adequately established any of the grounds on which a court may decline to order the child’s return under the Convention. Id. at *11–14.
29. Taglieri v. Monasky, 876 F.3d 868, 876 (6th Cir. 2017), op. vacated, on reh’g en banc, 907 F.3d 404 (6th Cir. 2018), aff’d, 140 S. Ct. 719 (2020). The dissenting judge thought the majority had reached an “erroneous result by adopting a formalistic, rigid, bright-line rule” that distorted the prior precedents in the Circuit. Id. at 882 (Moore, J., dissenting).
30. Ahmed v. Ahmed, 867 F.3d 682, 688–90 (6th Cir. 2017).
31. Taglieri, 876 F.3d at 875–77. The dissenting judge disagreed, taking the position that “[w]here the child is too young to have acclimatized to her community and surroundings, and where the parents do not have a settled mutual intent, I would conclude that the child cannot have a habitual residence.” Id. at 884 (Moore, J., dissenting).
32. Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018) (en banc), aff’d, 140 S. Ct. 719 (2020).
33. Id. at 408–09 (quoting United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990)).
34. Id. at 410 (emphasis in original).
35. Id. (“If adopted, Monasky’s approach would create a presumption of no habitual residence for infants, leaving the population most vulnerable to abduction the least protected.”).
36. The concurrence was written by Judge Boggs, who wrote the majority opinion for the panel described above. Id. at 411; see supra notes 29, 31 and accompanying text. Judge Moore, who dissented from the panel decision, also dissented from the en banc decision. Taglieri, 907 F.3d at 415; see supra notes 29, 31. Judge Moore agreed with the legal standard adopted by the en banc majority but thought that the case should have been remanded to the trial court. Taglieri, 907 F.3d at 420–21 (Moore, J., dissenting). Judges Gibbons and Stranch also wrote dissents. Id. at 421 (Gibbons, J., dissenting), 422 (Stranch, J., dissenting).
37. Compare Taglieri, 907 F.3d at 408–10 (applying clear-error review), with id. at 418–19 (Moore, J., dissenting) (concluding that review should be de novo).
38. Monasky v. Taglieri, 140 S. Ct. 719, 725 (2020). Monasky’s argument that proof of an actual agreement or “meeting of the minds” should be required draws from language in a Fifth Circuit decision. See Berezowsky v. Ojeda, 765 F.3d 456, 468–69 (5th Cir. 2014) (discussed supra note 18).
39. Monasky v. Taglieri, 907 F.3d 404 (6th Cir. 2018) (en banc), cert. granted, 139 S. Ct. 2691 (June 10, 2019) (No. 18-935), https://www.supremecourt.gov/docket/docketfiles/html/qp/18-00935qp.pdf. The first question was framed as “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 First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.” Id.
40. Monasky, 140 S. Ct. 719. Two justices concurred: Justice Thomas, see infra note 58, and Justice Alito, see infra note 56. There were no dissents.
41. Id. at 725–27 (citing Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3d Cir. 2006)).
42. Id. at 727 (citing Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)).
43. Id. at 723, 730.
44. Id. at 727–28.
45. Id. at 727 n.3 (quotation marks omitted) (citing James D. Garbolino, Fed. Jud. Ctr., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67–68 (2d ed. 2015)). Note that Judge Garbolino’s guide is available online at https://www.fjc.gov/content/309626/1980-hague-convention-civil-aspects-international-child-abduction-guide-judges.
46. Monasky, 140 S. Ct. at 727.
47. Id. This was not framed as a bright-line rule, however. Cf. supra note 29.
48. Monasky, 140 S. Ct. at 728.
49. Id. at 728–29; see also Grano v. Martin, 443 F. Supp. 3d 510, 535 ¶ 91 (S.D.N.Y 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020).
50. Monasky, 140 S. Ct. at 724 (describing Monasky’s testimony regarding abuse by Taglieri in Italy).
51. Id. at 729 (“We doubt, however, that imposing a categorical actual-agreement requirement is an appropriate solution, for it would leave many infants without a habitual residence, and therefore outside the Convention’s domain.”).
52. Id. at 727.
53. Id. at 729 (quoting Abduction Convention, supra note 2, art. 13(b) (return of child not required if person opposing return “establishes that . . . there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”)).
54. Id. at 730.
56. Id. Justice Alito disagreed with this aspect of the ruling, concluding that determination of habitual residence “is not a pure question of fact” and therefore that the appropriate standard of review would be for abuse of discretion. Id. at 735 (Alito, J., concurring in part and concurring in the judgment).
57. Id. at 730 (majority op.).
58. Id. at 732 (Thomas, J., concurring in part and concurring in the judgment). Justice Thomas disagreed with this aspect of the opinion, explaining that he would reach the same result based on a plain meaning approach. Id.
59. Brief for the United States as Amicus Curiae Supporting Neither Party, Monasky v. Taglieri, 140 S. Ct. 719 (2020) (No. 18-935), 2019 WL 3987632.
60. Monasky, 140 S. Ct. at 727–28, 730–31 (majority op.).
61. Robert Spector, Proceedings Under the Hague Child Abduction Convention: 2018–2019, 53 Fam. L.Q. 313, 317 (2020).
62. See 22 U.S.C. § 9003(e) (2020).
63. See, e.g., Grano v. Martin, 443 F. Supp. 3d 510, 538–39 (S.D.N.Y 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020); see also Farr v. Kendrick, 824 F. App’x 480 (9th Cir. 2020); Berenguela-Alvarado v. Castanos, 820 F. App’x 870 (11th Cir. 2020).
64. Including, for example, standards calling for “equitable” division of marital property, or determination of the “best interests” of a child.
65. Redmond v. Redmond, 724 F.3d 729, 743 (7th Cir. 2013); see supra notes 19–23 and accompanying text.
66. See Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3d Cir. 2006); Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003); see supra note 13 and accompanying text. This is also the approach advocated in the useful and careful treatment of habitual residence included in Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis 220–21 (2013).
67. E.g., Murphy v. Sloan, 764 F.3d 1144, 1150–51 (9th Cir. 2014) (asserting that the Ninth Circuit’s approach was “not inconsistent” with the international decisions). Though the court in Murphy considered the child’s acclimatization, it maintained the high burden of proof adopted in Mozes, requiring that “to infer abandonment of a habitual residence by acclimatization, the objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].” Id. at 1152 (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001); emphasis and alterations in Murphy).
68. For example, there has been substantial litigation of whether or not an agreement to relocate was conditional, and how that should affect a determination of habitual residence. See, e.g., Calixto v. Lesmes, 909 F.3d 1079, 1089–91 (11th Cir. 2018). Another stream of cases addresses whether coercion by one party negates a finding of shared intent. See, e.g., Tsarbopoulos v. Tsarbupoulos, 176 F. Supp. 2d 1045, 1055–56 (E.D. Wash. 2001). On Monasky and coercion, see supra notes 50–52 and accompanying text.
69. Cf. Larbie v. Larbie, 690 F.3d 295, 311 (5th Cir. 2012); Gitter v. Gitter, 396 F.3d 124, 133–34 (2d Cir. 2005). See supra notes 10–11 and accompanying text.
70. See, e.g., Forcelli v. Smith, No. 20-699, 2020 WL 5015838, at *7 (D. Minn. Aug. 25, 2020) (referring to Monasky but also citing Mozes for the proposition that there must be a settled intention to abandon a prior habitual residence before a new one can be acquired); cf. Chambers v. Russell, No. 1:20CV948, 2020 WL 5044036, at *5 (M.D.N.C. Aug. 26, 2020) (“Finally, since Monasky did not overturn the two-prong approach outright, this court will still apply it, cognizant of the Supreme Court’s directive that the inquiry is fact intensive and that the Hague Convention exists ‘to ensure that custody is adjudicated in what is presumptively the most appropriate forum—the country where the child is at home.’”) (quoting Monasky v. Taglieri, 140 S. Ct. 719, 727 (2020)).
71. Cf. Ruiz v. Tenorio, 392 F.3d 1247, 1252–59 (11th Cir. 2004); see supra note 12.
72. Cf. Feder v. Evans-Feder, 63 F.3d 217, 230 (3d Cir. 1995). See supra note 8 and accompanying text.
73. See, e.g., Farr v. Kendrick, 824 F. App’x 480, 482 (9th Cir. 2020); Berenguela-Alvarado v. Castanos, 820 F. App’x 870, 873–74 (11th Cir. 2020).
74. 443 F. Supp. 3d 510 (S.D.N.Y 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020).
75. Id. at 536.
76. Id. at 515, 534–39. These other facts included the location of the parents’ money and personal property, their citizenship and residence status, and whether they held return plane tickets. Id. at 537. The ruling was affirmed in a summary order discussing Monasky. Grano v. Martin, 821 F. App’x 26 (2d Cir. 2020).
77. 976 F.3d 558 (5th Cir. 2020).
78. Id. at 561 n.1.
79. Id. at 559–61.
80. Id. at 563.
81. da Silva v. de Aredes, 953 F.3d 67, 72–73 (1st Cir. 2020); see Abduction Convention, supra note 2, arts. 12, 13(b).
82. There were 491 new incoming cases reported to OCI in 2019 seeking return or access under the Abduction Convention. See U.S. Dep’t of State, Incoming Hague Convention Cases to the U.S. Central Authority: Applications Made for Return and Access in 2019 (2019), https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/CY%202019%20New%20Reported%20Incoming%20Cases.pdf. In 2018, the figure was 427. See U.S. Dep’t of State, Incoming Hague Convention Cases to the U.S. Central Authority: Applications Made for Return and Access in 2018 (2018), https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/Incoming%20Data%20Page%20-%202019%20Annual%20Report.pdf. In 2017, it was 454. See U.S. Dep’t of State, Incoming Hague Convention Cases to the U.S. Central Authority: Applications Made for Return and Access in 2017 (2017), https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/CY%202017%20New%20Reported%20Incoming%20Cases.pdf. In addition to the incoming cases, OCI opened 485 outgoing abduction case files in 2019. See U.S. Dep’t of State, Annual Report on International Child Abduction, supra note 4, at 1.
83. These cases are regularly reported in the annual Family Law Quarterly surveys. See, e.g., Spector, supra note 61, at 314–17; Robert Spector, Proceedings Under the Hague Child Abduction Convention: 2017–18, 52 Fam. L.Q. 567, 568–71 (2019).