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Where should a child born to an estranged international couple be raised? The U.S. Supreme Court will soon hear Monasky v. Taglieri, 907 F.3d 404 (6th Cir. 2018), which underscores the complications inherent in determining habitual residence for a baby too young to have acclimatized to a particular country when one parent alleges the baby was wrongfully removed.

Domenico Taglieri and Michelle Monasky married in 2011 in America. In 2013, they moved to Italy. Their relationship was marked by discord: Monasky claimed Taglieri physically abused her and forced sexual relations. In 2015 she began investigating a move back to the United States, and she asked Taglieri for a divorce. Two days later, she delivered 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. In response, Taglieri revoked his permission for the baby's U.S. passport. Monasky fled to the United States with the eight-week-old child. At the time, the baby had already lived in six places.

"Habitual residence" is loosely defined as the place where a child has acclimatized and feels settled. That can't happen in just eight weeks, so the law instead looks at where the parents intended the child to live. Although no court could determine a clear agreement between the parents, an Italian court terminated Monasky's parental rights, and the U.S. District Court for the Northern District of Ohio granted Taglieri's petition for the baby's return under the Hague Convention. The U.S. Court of Appeals for the Sixth Circuit sitting en banc affirmed. After the U.S. Supreme Court denied Monasky's motion for a stay pending appeal, the baby was returned to Italy.

Monasky petitioned for a writ of certiorari, which the Supreme Court granted in June. She argues that the Sixth Circuit should have used the de novo standard of review applied by seven circuits to the lower courts' habitual-residence determinations, rather than clear-error review. She also challenges the lower court's parental intent finding.

Monasky's brief stresses the need for uniformity among the circuits and that de novo review is necessary to "satisfy congressional demand" and "uniform international interpretation of the convention." She contends the court erred in considering the existence of a "matrimonial home" as opposed to actual agreement between the parties. Taglieri's opposition brief argues that the appellate court not only applied the correct standard of review, but that it's finding of shared parental intent was both accurate and sufficient to conclude the child was wrongfully abducted.

So far, four amicus curiae briefs have been filed, two neutral and two in support of Monasky. The arguments in these briefs likely provide a glimpse into what the Supreme Court will decide.

U.K.-based Reunite International Child Abduction Centre, which regularly intervenes in U.K., European and U.S. child abduction cases, seeks to educate the court about recent and "evolved" U.K. and European rulings that determined habitual residence using parental intent. The Hague Convention has never defined "habitual residence," says Reunite and, particularly in recent years, U.K. courts have declined to construct arbitrary rules to apply in every case. Following interpretations from the Court of Justice of the European Union, U.K. courts employ "a more factual approach, moving away from a parental intent focus … ."

The brief cites Mercredi v Chaffe, E.C.R. I-14309 (2010): "The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. … An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where … the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard … the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant."

Since 2013, the U.K. has adopted a "modern approach" to habitual residence, writes Reunite, using as guidelines the following:

  • Habitual residence is a fact, not a "legal concept."
  • Numerous facts determine the place that reflects a child's integration into a social and family environment.
  • The parents' intentions are only one relevant factor.
  • Social and family environment is shared with those upon whom the child is dependent.
  • Habitual residence determination should not include "legal concepts" that produce a different result from the factual inquiry.
  • A child may have no country of habitual residence at a particular time.
  • The habitual residence focus can include the child's actual situation.
  • The parental intent inquiry may include the reason the child left one country for another.
  • The degree of stability of the residence is more important than its permanence.

The solicitor general's brief on behalf of the United States is also neutral, filed to represent the country's interests as a party to the Hague Convention. A habitual residence determination does not require a subjective or actual parental agreement, the United States argues. That finding is flexible and factual and varies from case to case. The "touchstone," however, is determining the child's usual and customary dwelling, and to do so the court should consider the "full range of permissible evidence," including the following:

  • Any actual agreement
  • An expressed intent to remain in one country
  • Parental employment
  • Home purchase or long-term lease
  • Moving household belongings
  • Local bank accounts
  • Applications for driver's or professional licenses
  • The child's ties to the country
  • Other relevant factors

Since the district court focused on the shared parental intent to the exclusion of all other facts, the United States urges the court to vacate and to remand the case for an application of the correct flexible and fact-based inquiry. In addition, because appellate courts traditionally review determinations based on the law de novo and fact-based findings under clear error, this case is not appropriate for de novo review. Even if it were a combined legal and factual determination, the standard is still clear error, the United States argues.

The two remaining briefs, which support Monasky's position, both mention the alleged domestic violence as one of the relevant factors the district court should have but failed to consider.

The Frederick K. Cox International Law Center at Case Western Reserve School of Law, a leading international law institution with a mission to support advancement of international law, is asking to the court to reverse the Sixth Circuit decision because Taglieri failed to meet his burden of proof that A.M.T. acquired a habitual residence in Italy. The center argues that habitual residence is the threshold evidentiary showing the applicant for a Hague Convention child abduction applicant must meet. The district court erred in not considering the "totality of factual circumstances before making its determination, the center contends, and Italy was never A.M.T.'s habitual residence for the following reasons:

  • Her constant movement during the first eight weeks of her life never created a stable home. Her only "constant, apart from the mother, was change." That instability was compounded by the domestic violence.
  • If A.M.T. did not have a habitual residence, her move to the United States was not an abduction under the Hague Convention.
  • The flexibility of the habitual residence fact-finding allows a finding of no habitual residence, particularly when the "conflict is contemporaneous with the birth."
  • Monasky never integrated into a social environment in Italy.
  • The courts should not punish Monasky because of her last-ditch effort to make the marriage work for the best interests of A.M.T.

The brief filed by Sanctuary for Families and other nonprofits that support victims of domestic violence argues that the domestic violence itself is enough to support a conclusion that a removal of a child from danger is not a Hague Convention child abduction and urges the court to adopt an actual agreement standard in domestic violence cases.

"The Sixth Circuit's holding places victims of domestic violence at serious risk," writes Sanctuary for Cities. "Victims will often engage in subtle cognitive, emotional, and behavioral shifts before deciding to flee an abusive partner. These shifts could include, for example, communicating more often with their family abroad or searching for job postings in their home country—all while continuing to go to work and take care of their partner. These sorts of shifts are inherently designed to go unnoticed, because victims do not want to signal their intention to their abusers in the interest of their safety and that of their children.  As a result, such changes may seem inconsequential to a district judge months (or years) after the fact. A battered parent's observable behavior, in other words, does not always reflect actual intention."

The brief points out that Hague Convention has almost entirely met its original of goal of preventing use-of-force child abductions. Present day removal cases, however, largely involve a parent fleeing domestic violence. In the vast majority of cases, the fleeing parent is the child's caregiver. By 2011, member states began expressing concerns that the Hague Convention was more harmful than helpful to parents attempting to protect children from abuse and created a risk that some countries would pull out of the convention. If the convention purports to protect children, the brief argues, they are often best served by not returning. In fact, the goal is not to reverse every removal; rather, the convention seeks to remedy the harm resulting from removal. In that vein, protecting children from danger takes precedence over their return.

Sanctuary for Children contends that an "actual agreement" standard in domestic violence child removal cases accomplishes the following:

  • The best interests of the children are a primary consideration.
  • The fleeing parents are granted the opportunity to explain why they stayed, why they fled, their fears and their concerns for the children's safety.
  • Courts would have "more discretion to evaluate the dynamics between parents based on their demeanor in the neutral environment of the courtroom—rather than based on their outward behavior in an environment where the removing parent was forced to obscure her intentions."
  • The standard better reflects reality.
  • The standard will better ensure uniform application of the Hague Convention worldwide.
  • Even though the convention has a "grave risk" exception that does not require the return of child if he or she would be subjected danger, that exception is narrowly applied. Many courts have ruled it does not follow that because the mother is abused, the child will also face the same treatment.

The amici briefs summarized above all miss the point of this case: A.M.T. is not a child, she is an infant. For purposes of Hague Convention child abduction cases that distinction is important. An infant as young as A.M.T. was when abducted has not developed a "social environment." She eats, sleeps and responds to touch and voices. Her environment is where her caregivers place her to take care of those needs. As such, the only applicable inquiry to determine her habitual residence is the parents' intent. Evidence to determine parental intent should analyze the abducting parent's actions before the infant was wrongfully abducted, not the expressed motivation after the infant was removed. In this case, that relevant evidence supports a conclusion that Monasky removed A.M.T. before she could develop a relationship with Taglieri in an attempt to support her argument that Italy was not A.M.T.'s habitual residence. I believe that argument fails.

In addition, none of the facts presented clearly point to a conclusion that Monasky was the victim of domestic violence, but to her attempts to manufacture such a situation. If taken seriously by the courts, her arguments could do more harm than good for children with two loving and supportive parents. Monasky presents no evidence that the protection she sought was not available in Italy. To the contrary, she was able to find safe housing at the mere suggestion that she felt unsafe. Removal to the United States was not her only reasonable option even if her life was in peril.

For those reasons, I believe the district court and the Sixth Circuit made the right decision and the Supreme Court should uphold it.

Maya Shulman, of Shulman Family Law Group, is a Calabasas, California-based family lawyer who focuses her practice on international divorce and custody disputes.