After several decades of inconsistent interpretations by federal courts of the term "country of habitual residence" that is key to the cases under the Hague Convention on Civil Aspects of International Child Abduction, the U.S. Supreme Court finally has spoken. Or has it?

In a recent landmark decision, Monasky v. Taglieri, 140 S.Ct. 719 (2020), the Supreme Court for the first time directly addressed the definition of "habitual residence" under the Hague Convention. The Hague Convention requires all signatory states to promptly return a child wrongfully removed from his or her "country of habitual residence" to a foreign country by one parent without the consent of the other parent. A U.S. court deciding a Hague petition must thus determine the threshold issue of whether the country from which the child was removed to the United States has remained—or whether the United States has become—the child's "country of habitual residence."

Key Issue

"Every Hague Convention petition turns on the threshold determination of the child's habitual residence; all other Hague determinations flow from the decision." Tsai-Yi Tang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007). Thus, the definition of "habitual residence" is of paramount importance to any court considering a Hague petition. Indeed, the term "habitual residence" appears 15 times in the text of the Hague Convention itself. Yet, the Convention does not provide a definition of "habitual residence." The Supreme Court's decision was therefore highly anticipated by the practitioners in order to bring clarity and predictability to this key issue under the Convention.

Case History: Shared Intent

Prior to Monasky, some federal appellate courts emphasized the "shared intent of the parents" when determining the habitual residence. Thus, "[w]hen parents have mutually intended that a child acquire a new habitual residence, the child has…acquired a new habitual residence." Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); see also Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir. 2013) ("We begin an analysis of a child's habitual residence by considering the relevant intentions, because focusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location.") (internal citations omitted); Mauvais v. Herisse, 772 F.3d 6, 11 (1st Cir. 2014) ("[O]ur inquiry…begins with the parents' shared intent or settled purpose regarding their child's residence.").

Other appellate courts placed the primary emphasis on whether the child has so "acclimatized" to the new country that it has become the child's new "country of habitual residence" regardless of the parents' intentions. These courts look to whether the child has been physically present in the country for a sufficient period of time for acclimatization to occur and whether the place has a degree of settled purpose from the perspective of the child. See e.g. Monasky v. Taglieri, 907 F.3d 404, 407 (6th Cir. 2017) ("The primary approach looks to the place in which the child has become 'acclimatized.'"); see also Karkkainen v. Kovalchuk, 445 F.3d 280, 293 (3d Cir. 2006) ("To determine whether [the child's] habitual residence changed…to the United States, we first consider whether she acclimatized to the United States prior to the date of retention and whether there was a degree of settled purpose from her perspective to remain in this country ….").

Simply stated, before Monasky, the courts wrestled with the question of whether the shared intent of the parents as to where a child should reside or the child's actual connections to the two countries in question was more important. The U.S. Court of Appeals for the Second Circuit, for example, has cautioned that, even though the shared intent of the parents is important, a court "would be hard pressed to conclude, for example, that a child who has spent 15 years abroad in the same state is not habitually resident there, even if the parents intended someday to return and did not intend that the child acquire a new habitual residence." Gitter, 396 F.3d at 133.

In contrast, the U.S. Court of Appeals for the Ninth Circuit noted that courts should be slow to infer that a child's acclimatization trumped the parents' intent as it could "open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit." Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001).

Given these differences among the federal circuit courts, the practitioners specializing in cases arising under the Hague Convention have long anticipated the Supreme Court's guidance on the proper standard the courts should apply in deciding this critical issue. While the specific question before the court in Monasky was more narrow, there were high hopes that the court would resolve the broader question of the applicable standard as well.

The narrow question presented to the Supreme Court in Monasky was whether an actual agreement between the parents on where to raise their child was "categorically necessary" to establish a child's habitual residence. The court answered this question in the negative. Of course, an actual agreement between the parents as to where a child should be brought up cannot be "categorically necessary," since as the court correctly pointed out, in any case in which there is no such actual agreement, the child would have no habitual residence whatsoever. Given that potentially absurd outcome, the court's answer to the narrow question was neither surprising nor particularly illuminating.

As expected, however, the Supreme Court also explicitly recognized a much broader issue presented by the "differences in emphasis among the Courts of Appeals" in determining the habitual residence. Monasky, 140 S.Ct. at 725. The court thus specifically undertook to resolve that issue by, one would hope, articulating a clear standard that could be predictably applied by the lower courts. Unfortunately, the court has not done so.

The "New" Standard?

The Monasky court held that the determination of a child's habitual residence requires a fact-sensitive analysis, taking into account the totality of the circumstances specific to each case:

Because locating a child's home is a fact-driven inquiry, courts must be sensitive to the unique circumstances of the case and informed by common sense. For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense 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. But suppose, for instance, that an infant lived in the country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus.

140 S.Ct. at 727 (internal citations and quotation marks omitted).

This "new" standard is neither new nor really a standard the lower courts could apply reliably and predictably. Obviously, when a Court of Appeals emphasized one factor, such as the shared intent of the parents, over another factor, such as acclimatization (or lack thereof), both factors must have been present in that case, and both factors must have been considered by the court. Otherwise, there could have been no emphasizing of one extant factor over another. The Supreme Court's direction to consider all factors thus does nothing to resolve the existing differences in emphasis among the Courts of Appeals.

Nor is the court's direction to use "common sense" at all illuminating. We are not aware of any decision where an appellate court's emphasis on one factor over another was made against the court's common sense. Quite the opposite is true: presumably, different courts emphasized different factors because their common sense told them that that would be the right approach.

This is precisely why there was a need for clearer guidance as to the weights the trial and appellate courts should give to each factor. This is also precisely what the Monasky court did not do. Instead, it only restated the obvious, that all factors must be considered. It would thus appear that the court has left the current state of the law unaffected. For example, in the Second Circuit, where the courts consider all factors but give more weight to the parents' agreement over acclimatization, the Monasky decision has done nothing to change that approach. The same would seem to apply to the jurisdictions that give more weight to the acclimatization factor.

We therefore expect that the Courts of Appeals will continue their practice of emphasizing different factors in determining a child's country of habitual residence. We also hope that the Supreme Court will take another opportunity to address this issue, and that time will provide an actual standard the lower courts can apply in a way that produces consistent and predictable results. Valentina Shaknes is a co-founding partner of the matrimonial and family law firm Krauss Shaknes Tallentire & Messeri. Justine Stringer is an associate at the firm. They practice exclusively in matrimonial and family law and specialize in international child abduction disputes, including proceedings under the Hague Convention.