February 25, 2020

Monasky v. Taglieri

INTERNATIONAL CUSTODY

In an International Custody Dispute, How Do Courts Determine an Infant’s Country of Habitual Residence When She Is Too Young to Acclimate to Her Surroundings?

CASE AT A GLANCE

The Hague Convention requires international custody disputes to be resolved in the child’s country of “habitual residence” and discourages parents from leaving that country with the child. In this case, a U.S. district court ruled that an American mother must return her infant daughter to Italy, where she was born and the father remained. Because the infant was too young to acclimate to her surroundings, the judge determined her habitual residence based on evidence of the parents’ shared intent, and an appeals court reviewed that determination for clear error on appeal.

Docket No. 18-935
Argument Date: December 11, 2019
From: The Sixth Circuit
by Elizabeth Slattery
Heritage Foundation, Washington, D.C.

ISSUES

Should an appeals court review a district court’s determination of habitual residence under the Hague Convention using de novo review or clear-error review?

Is a subjective agreement between an infant’s parents necessary to establish her habitual residence under the Hague Convention when she is too young to acclimate to her surroundings?

FACTS

This case involves a custody dispute between Michelle Monasky, an American citizen, and Domenico Taglieri, an Italian citizen, who were living in Italy when their daughter, A.M.T., was born. The relationship began to deteriorate before A.M.T. was born, and Monasky looked into filing for divorce and returning to the United States. After A.M.T. was born, the situation did not improve. Following an altercation that led Monasky to seek shelter at a police station, she fled the country with the two-month-old baby. Taglieri brought an action in Italian court to terminate Monasky’s parental rights and filed a petition in the U.S. District Court for the Northern District of Ohio to return A.M.T. to Italy consistent with the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute. The United States and Italy, along with nearly 100 other countries, are signatories to the 1980 Hague Convention, which requires custody disputes to be resolved in the child’s country of “habitual residence” and discourages parents from leaving that country with the child. The Hague Convention does not define “habitual residence” and does not specify how to determine the habitual residence of an infant. Both the Italian and U.S. district courts ruled in Taglieri’s favor, and Monasky returned A.M.T. to Italy.

Under the federal law implementing the Hague Convention, a parent may seek the return of an abducted child to the child’s country of habitual residence. The parent must prove by a preponderance of evidence that the child was wrongfully removed in violation of custodial rights “under the law of the State in which the child was habitually resident immediately before the removal.” In reviewing Taglieri’s petition, U.S. district court Judge Oliver Solomon Jr. noted that the habitual residence of an infant may be determined by looking at the parents’ shared intent. During a four-day bench trial, he considered testimony about Monasky and Taglieri finding full-time jobs in Italy, furnishing their home in Italy with items for A.M.T., looking for an au pair, and scheduling routine doctor’s visits for A.M.T., which all suggested they intended to raise A.M.T. in Italy. He weighed this evidence against the fact that Monasky and Taglieri applied for A.M.T.’s passport to travel to the United States, and that Monasky wanted to seek a divorce and return to the United States. Judge Solomon concluded that the evidence showed Monasky and Taglieri intended to raise A.M.T. in Italy, making it her country of habitual residence. The judge explained that “conflict between parents does not necessarily ‘disestablish’ a child’s habitual residence” and he could “hardly conclude that an acrimonious marriage alone prevents a young child from acquiring a habitual residence.”

Monasky appealed to the U.S. Court of Appeals for the Sixth Circuit, and a three-judge panel affirmed the district court. Then the full Sixth Circuit reheard the case en banc, again upholding the district court’s ruling. Judge Jeffrey Sutton wrote for the majority, explaining, “[W]e must let district courts do what district courts do best—make factual findings—and steel ourselves to respect what they find…[T]hey listen to witnesses for a living  [and] largely assess the credibility of parties and witnesses for a living.” Citing another Sixth Circuit case, Judge Sutton wrote, “[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.’” Because the district court judge used the correct legal standard and made no “clear errors” in determining A.M.T.’s habitual residence, the appeals court affirmed.

Several judges dissented, primarily because the appeals court had decided Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), annunciating two ways to determine an infant’s habitual residence, after the district court ruled in this case. The dissenters would have sent the case back to the district court to reevaluate A.M.T.’s habitual residence in light of Ahmed’s holding that habitual residence may be determined by looking at where the child is acclimatized and, for infants, whether there is shared parental intent regarding a habitual residence. Monasky petitioned the Supreme Court for review, and it granted certiorari and scheduled the case for oral argument on Wednesday, December 11, 2019.

CASE ANALYSIS

Monasky argues that the appeals court should have reviewed the trial court judge’s findings under a less deferential de novo standard of review. This is supported by a “relatively explicit statutory command” because Congress has stressed the importance of “uniform international interpretation” of the Hague Convention. She points out that the majority of appeals courts have employed the de novo standard when reviewing habitual-residence determinations. She further argues that the appeals court was wrong to consider a habitual-residence determination a “pure question of fact” when it “reflects a legal judgment about the settings in which the Contracting States intended the Hague Convention’s return remedy to be available.”

Monasky also maintains that the lower court erred in ruling that she and Taglieri had a “shared parental intent” for Italy to be A.M.T.’s habitual residence, arguing that they were not actually in agreement. Requiring an actual agreement between the parents “facilitat[es] prompt review of return petitions and deter[s] parents from depriving infants of a stable family and social environment.” Instead, courts should interpret habitual residence by its plain meaning, which requires “a degree of settled purpose” and “continuity.” She further argues that the lower court’s approach “incentiviz[es] parents to forum-shop for a more favorable venue,” which is particularly harmful to children in homes where there is domestic violence. Monasky concludes that A.M.T. was not habitually resident in Italy since she fled the country and her abusive husband “as soon as the eight-week-old’s passport had arrived.”

Taglieri argues that an actual agreement between the parents is unnecessary to establish an infant’s habitual residence. He maintains that the parents’ intent is relevant as one of several factors a court could consider and that Monasky’s standard would lead to “a large number of cases in which a young child would be found to have no habitual residence.” While the Hague Convention does not define the term, Taglieri writes that the plain meaning of habitual residence is the place where the child “customarily” or “usually” lived before being abducted. Looking at how other courts have interpreted the language is instructive since Congress indicated that “uniform international interpretation…is part of the Convention’s framework.” Taglieri points to a 2018 ruling by the Supreme Court of Canada that habitual residence is “the focal point of the child’s life—‘the family and social environment in which its life has developed’—immediately prior to the [challenged] removal.” Taglieri further argues that a district court’s habitual-residence determination is a “classic mixed question of law and fact,” which should be reviewed for clear error on appeal. De novo review would undercut the Convention’s “emphasis on prompt return” and “inevitably encourage more appeals in these emotionally-fraught disputes—because the chances of reversal are greater.”

The United States government filed an amicus brief supporting neither party, arguing that a subjective agreement between parents is neither “necessary nor sufficient” to establish an infant’s habitual residence. The government agrees with Taglieri that the ordinary meaning of habitual residence is where the infant “customarily or usually lives.” Ascertaining this physical location is a “quintessentially factual question.” The court’s flexible and fact-bound inquiry could include looking at the parents’ intent as well as the infant’s length of residence, other ties to the area, and immigration status, among other factors.

The government writes that the drafters of the Hague Convention rejected “legalistic concepts” such as domicile and nationality for being “too rigid and technical.” The drafters wanted to avoid “artificial jurisdictional links” and chose “habitual residence” for its “flexibility to adapt to changing familial circumstances.” The government agrees with Taglieri and the lower court that the district court ruling should be reviewed for clear error. Since the district court did not “engage in the flexible and fact-bound inquiry” the Convention requires, the government urges the Supreme Court to vacate the appeals court ruling and remand the case.

SIGNIFICANCE

The significance of the case to Michelle Monaksy and Domenico Taglieri cannot be overstated. Monasky writes that the separation from her daughter “is not only deeply hurtful…but also highly detrimental to [her daughter’s] development,” and without a return order, she will have “no meaningful legal recourse in either the United States or Italy, and [her daughter] will be forced to grow up without her mother’s love, guidance, protection, and support.” Of course, the Supreme Court generally does not take up cases that will be “one offs,” preferring, instead, to use its rulings to guide lower courts in their administration of the law. This case offers the Supreme Court just that opportunity. As the old adage goes, in a criminal case, you see bad people at their best, and in a divorce case, you see good people at their worst. In cases invoking the Hague Convention, the parties are at their most vulnerable and parents face the prospect of separation from their child. There are hundreds of return petitions filed each year, so the Supreme Court can use its ruling in Monasky v. Taglieri to ensure that cases in the United States are handled uniformly, by shedding light on how courts should determine an infant’s habitual residence and clarifying the proper standard of review of such determinations on appeal.

Elizabeth Slattery is a legal fellow at the Heritage Foundation in Washington, D.C., and host of SCOTUS 101, a podcast about the Supreme Court. She can be reached at elizabeth.slattery@heritage.org and 202.608.6202.

PREVIEW of United States Supreme Court Cases 47, no. 3 (December 2, 2019): 44–46. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner Michelle Monasky (Amir Cameron Tayrani, 202.887.3692)
  • For Respondent Domenico Taglieri (Andrew John Pincus, 202.263.3220)

AMICUS BRIEFS

In Support of Petitioner Michelle Monasky

  • Frederick K. Cox International Law Center (David Alan Carney, 216.621.0200)
  • Sanctuary for Families, et al. (Michael Alexander Johnson, 202.942.5000)

In Support of Respondent Domenico Taglieri

  • American Academy of Matrimonial Lawyers (Peter M. Walzer, 818.591.3700)
  • International Academy of Family Lawyers (Edwin A. Freedman, 00.972.3.6966611)

In Support of Neither Party

  • Reunite International Child Abduction Centre (Kelly Ann Powers, 202.465.8375)
  • United States (Noel J. Francisco, Solicitor General, 202.514.2217)