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The United States Law Week

Justices Struggle With Child Abduction Treaty Case

Dec. 11, 2019, 6:39 PM

The justices of the U.S. Supreme Court struggled during oral argument with the standard for deciding under the Hague Convention what country should be able to determine where an infant in the middle of a custody battle should reside.

The parties, divorcing parents in an international custody battle, seek clarification about the application of the term “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abductions.

The residence of a child is key in determining what nation’s law governs custodial or access rights and whether the Hague Convention is applicable.
The Hague Convention is a treaty that is implemented when a child is internationally abducted and must be returned to where their habitual residence lies.

Several justices said they didn’t want to tie the hands of the lower courts when it comes to determining the facts of these emotional cases since the outcome is not one-size-fits-all.

Justice Stephen Breyer stated that, “black letter law will help people in some cases and cause chaos and hardship in others.”

Some of the justices seemed to be leaning towards a totality of the circumstances framework for determining what is a child’s habitual residence.

“No one factor should be considered controlling and a district judge should decide,” said Justice Ruth Bader Ginsburg.

Here, Michelle Monasky, an American citizen, married Italian citizen Domenico Taglieri and they resided together in the U.S. until he moved back to Italy when he was not able to find work.

Monasky, who testified her husband was sexually abusive, followed him to Italy where she became pregnant and gave birth to their child. Once the child’s passport was processed, she traveled back to the U.S. with the child. Subsequently, the father filed a Hague Convention petition in the U.S. District Court for the District of Ohio, requesting the child return to Italy.

Ginsburg questioned where mothers with intolerable situations are left. If “she wants to escape domestic violence she has to leave her child behind,” Ginsburg said.

Monasky v. Taglieri, U.S., No. 18-935, oral arguments 12/11/19

To contact the reporter on this story: Heather Saltz in Washington at hsaltz@ic.bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Kimberly Strawbridge Robinson at krobinson@bloomberglaw.com

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