WASHINGTON—The Supreme Court seemed reluctant to wade into an international child custody dispute during oral arguments on Dec. 11 in a case about a young girl born overseas whose Italian father wants to keep her in Italy and whose American mother wants her returned to the United States.
The Hague Convention on the Civil Aspects of International Child Abduction 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 was created 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. One of the goals 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.
At times, justices seemed exasperated during oral arguments in the case cited as Monasky v. Taglieri.
“Why should it be here instead of there?” Justice Sonia Sotomayor said. Why is it “the American court, rather than the Italian court, who should be dealing with the custody issue?”
The case involves anesthesiologist Domenico Taglieri, an Italian national, 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 looking into 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.
U.S. District Judge Oliver Solomon Jr. of the Northern District of Ohio 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.’”
One of the problems with the Hague Convention, justices and lawyers said at the Supreme Court, is that it offers no definition of “habitual residence” nor guidance on how to determine an infant’s habitual residence. Habitual residence is generally understood to refer to the place where a child has acclimatized and feels comfortable. Because this can’t happen in a mere two months as in the case of A.M.T., the law focuses on where the parents intended the child to reside.
Habitual residency “is a meaningless concept when you’re talking about someone who’s eight weeks old,” Chief Justice John Roberts said.
“It’s not as if they’d laid down roots,” Roberts said. “Eight-week-old infants don’t have habits, well, other than one or two,” he said to laughter.
Justice Stephen Breyer suggested to Monasky’s attorney, Amir C. Tayrani, that articulating a clear legal standard in the case could cause many problems for other family law litigants.
“Don’t treat these words ‘habitual residence’ as if it’s like a black-letter tax code. They’re more like a factual matter. And let the judge who’s closest to it, even though he’s not a family court judge—unfortunately, it’s a federal system because it’s a treaty—let them hear all the evidence and decide it. And that’s it,” Breyer said.
“And as soon as nine people who know,” an apparent reference to the nine justices on the Supreme Court, “speaking for myself, know very little about this, start laying down black-letter standards, all we’re going to do is maybe help people in some cases and just cause chaos and hardship in others.”