WASHINGTON—A young child born in Italy to an American mother and an Italian father who split up soon after her birth should remain in her father’s custody in that country because it’s considered her habitual residence, the Supreme Court decided.
Even though the child had only lived in Italy for two months at the time the mother brought her to the United States, that brief period was sufficient to establish her habitual residence, the Supreme Court found. This finding was consistent with the approach taken by authorities in other countries that abide by the terms of the treaty, the court noted.
During oral arguments Dec. 11, 2019, both justices and lawyers complained that the treaty offers no definition of “habitual residence” nor guidance on how to determine an infant’s habitual residence, which is generally understood to refer to the place where a child has acclimatized and feels comfortable.
In the decision, the court held it was important to consider that during the earliest period in the newborn’s life, the parents never formulated any specific plans to leave Italy and lived their lives as if they intended to continue residing there with the child.
The Supreme Court had to examine the Hague Convention on the Civil Aspects of International Child Abduction, which is a multilateral treaty that entered into force on Dec. 1, 1983. There are 101 signatory countries, including the United States and Italy.
The treaty exists to provide a speedy method to return children under the age of 16 internationally abducted by a parent from their country of habitual residence or wrongfully kept in a signatory country that isn’t their country of habitual residence. A goal of the treaty is to preserve the child custody arrangement that was in place immediately before the abduction, on the theory that doing so deters parents from crossing international boundaries to seek out more sympathetic courts.
The case involves anesthesiologist Domenico Taglieri, an Italian citizen, and research biologist Michelle Monasky, a U.S. citizen, who were married in the United States in 2011. In 2013, they relocated to Italy.
In 2015, Monasky, who claims to be the victim of domestic abuse at the hands of Taglieri, began considering moving back to the United States and told her then-husband she wanted a divorce. Two days later, she delivered a baby girl identified in court papers as A.M.T.
Monasky returned to the United States with the 2-month-old baby, who, by that point in her life, had already lived in six places.
Both Italian and U.S. district courts ruled in favor of the father. The mother complied with court orders and returned A.M.T. to Italy.
In Ohio, U.S. District Judge Solomon Oliver Jr. noted that various factors, such as the parents finding full-time employment in Italy, looking for an au pair there, and scheduling doctor visits for A.M.T. suggested the parents intended to raise their daughter in Italy. The fact that the parents’ relationship deteriorated doesn’t necessarily “disestablish” the child’s habitual residence, Solomon held.
Monasky appealed to the 6th Circuit Court of Appeals. A three-judge panel ruled against her. The mother appealed to the full circuit, which also ruled against her. In his majority opinion, Judge Jeffrey Sutton wrote, quoting another decision, that the trial court’s ruling shouldn’t be disturbed “unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’”
The Supreme Court adopted similar reasoning as it refused to interfere with the findings of the lower tribunals.
“In accord with decisions of the courts of other countries party to the Convention, we hold that a child’s habitual residence depends on the totality of the circumstances specific to the case.” The high court found that an “actual agreement between the parents is not necessary to establish an infant’s habitual residence.”
Although the Convention “recognizes certain exceptions to the return obligation” when a child has been “wrongfully removed or retained away from the country in which she habitually resides,” the court was not convinced that returning the child to Italy would place her at “grave risk” of harm.
The District Court acknowledged Monasky’s allegations that Taglieri physically abused her but found no evidence he “ever abused A.M.T. or otherwise disregarded her well-being,” Ginsburg wrote in the opinion.
