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On Dec. 11, 2019, the U.S. Supreme Court heard argument in Monasky v. Taglieri, a case involving the standard of appellate review applicable to determinations of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, as well as the conditions under which habitual residence is established for an infant.

The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence.  The courts of that country can then resolve any underlying custody disputes.  

Petitioner Michelle Monasky, an American, gave birth to her daughter A.M.T. in Italy.  Monasky’s husband Domenico Taglieri, who is the father, is Italian.  Alleging that Taglieri had become physically abusive, Monasky took the newborn A.M.T. to a domestic abuse shelter in Italy, and several weeks later both left for Ohio.  Taglieri obtained an ex parte ruling from an Italian court terminating Monasky’s parental rights and then petitioned in federal district court in Ohio for A.M.T.’s return under the Hague Convention.  The district court granted the petition, and the U.S. Court of Appeals for the Sixth Circuit and the U.S. Supreme Court denied Monasky’s petition for a stay.  She then returned A.M.T. to Italy.  On appeal, a divided Sixth Circuit, sitting en banc, affirmed the district court’s ruling on the merits.  In doing so, the Sixth Circuit treated the question of habitual residence as ultimately one of fact to be reviewed on appeal for clear error only.

Arguing that the Sixth Circuit’s approach was in tension with that of several other federal circuit courts of appeals, Monasky petitioned for certiorari.  The Supreme Court granted the petition to consider whether (1) a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo rather than for clear error; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.

To discuss the case, we have Margaret Ryznar, Associate Professor of Law, Indiana University Robert H. McKinney School of Law.

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.