Supreme Court Addresses Child Abduction and Hague Convention Habitual Residence of Child Standard
In Monasky v. Taglieri, No. 18-935, 2020 U.S. LEXIS 1362, at *1 (Feb. 25, 2020), a rare family law issue made its way to the United States Supreme Court, by virtue of an action brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. In Monasky, a wife, who was a U.S. citizen, argued that as soon as she moved to Italy with her Italian husband, he became physically abusive towards her. After a heated argument, the wife fled with their minor daughter to the Italian police and sought shelter in a safe house. Two weeks later, the wife left with the minor child for Ohio. Husband brought Hague Convention action in the United States District Court for the Northern District of Ohio, seeking to compel the return of the child to Italy.
The Hague Convention generally provides that a child who is wrongfully removed from his or her country of habitual residence must normally be returned to that country. After a 4-day trial, the District Court ordered the return the child to Italy, finding that the shared intention of the child’s parents was for the child to reside in Italy, and that even though there was no formal agreement as to same, Italy was the child’s country of habitual residence. At trial, mother argued that there must be an actual agreement for the child to reside in Italy to base a finding of habitual residence on such an agreement, and husband argued that no actual agreement was necessary and that the totality of circumstances should be considered. The United States Sixth Circuit Court of Appeals, en banc, affirmed the District Court’s findings as to the child’s place of habitual residence. The Supreme Court also affirmed, and Justice Ginsberg wrote the decision for the majority, which included Chief Justice Roberts, and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and, in part, Justices Thomas and Alito. The Court held that a totality-of-circumstances test should apply, and found that there is no categorical requirement, such as an actual agreement, and that a variety of factors, such as physical presence and the fact that the parents have made their home in a certain country, can be considered in determining whether a residence is “habitual” for an infant minor child.
While the Hague Convention allows a court to refuse to return a child if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation[,]” and the District Court’s found that the testimony as to abuse against the mother was disturbing, there was no evidence that the father ever abused or neglected the child. Any time-sharing issues relating to the mother's abuse could be litigated at the appropriate forum.
Lastly, the United States Supreme Court resolved the issue of the appellate standard of review for an initial habitual residence determination. The Court decided that the issue presented a close call, but that it is a mixed issue of law and fact. Generally, questions of law are reviewed de novo and questions of fact, for clear error, while the appropriate standard of appellate review for a mixed question depends on whether answering it entails primarily legal or factual work. The Court decided that the “clear error” standard of review was appropriate in the case.
Sometimes, a Hague Convention action is either necessary or the most appropriate course of action for a client in need of securing the return of a child. However, the Hague Convention does not always apply. More, very often, there are other, state court, remedies available to secure the return of a minor child, which may progress in a quicker and more cost-effective manner. It is important to retain legal counsel who is well-versed and in tune with legal developments, including appellate issues if you are dealing with a family law or child custody dispute, including international child abduction. If you need help, Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a 2019 and 2020 "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2020), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
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