International Child Custody After Monasky v. Taglieri

The Hague Abduction Convention

Family law matters—such as child custody disputes—are primarily governed by state law. While family law rules might vary slightly from state to state, court orders for child custody from one state are generally enforceable thanks to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)—a uniform set of standards and rules put in place to resolve custody disputes with parents residing in different states.

Similarly, child custody orders from different countries may be enforceable in the United States. Like the UCCJEA, international child custody disputes are subject to the rules of the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Abduction Convention”)—a treaty designed to help resolve international child custody disputes between member countries of the Hague Abduction Convention, including the United States.

An essential aspect of the Hague Abduction Convention involves determining what country’s court has jurisdiction to resolve international child custody disputes. Under the Hague Abduction Convention, the court in the country that is the child’s “place of habitual residence” has jurisdiction to resolve child custody cases between parents from different countries.

Although the Hague Abduction Convention does not define the term “habitual residence,” courts have interpreted it to mean the place where the child has “acclimatized” to his or her environment.

However, acclimatization implies that a child spends enough time in one place to have adapted to their surroundings and adopted the customs and values of their environment. In disputes involving infants who have not lived long enough to have acclimatized the one place over another, courts have held that the child’s place of habitual residence may be evidenced by the “shared parental intent” of the parties.

Hague Convention Cases & Monasky v. Taglieri

The provisions of the Hague Abduction Convention were are at issue in a recent U.S. Supreme Court case: Monasky v. Taglieri. This case presented the question of whether the shared parental intent of the parties must be evidenced by an actual agreement between the parents.

In Monasky, the mother left Italy and her three-month-old daughter’s father for the United States. The mother claimed that the father was abusive towards her, forcing her to leave him and Italy with their child.

The father obtained an order from an Italian court terminating the mother’s parental rights. The father sought to enforce the order in the United States under the Hague Abduction Convention, demanding the return of their daughter.

U.S. Courts ordered the child’s mother to return her daughter to Italy on the basis that it was the child’s place of habitual residence, as evidenced by the shared parental intent of the parties. The mother argued that whatever shared parental intent of the parties had to make Italy, the child’s place of habitual residence ultimately disappeared when the father began abusing the mother. Therefore, there was no actual agreement between the mother and father about where the child should live.

The Supreme Court’s Decision

In a unanimous decision, the Supreme Court ruled in favor of the father, with some justices concurring as to the case’s outcome, but diverging from how the majority of justices ultimately arrived at its conclusion.

Justice Ruth Bader Ginsberg penned the opinion for the majority, while Justice Clarence Thomas wrote a concurring opinion, joined by Justice Samuel Alito.

According to Justice Ginsberg’s opinion, questions of shared parental intent under the Hague Abduction Convention do not require evidence of an actual agreement between the parties. She reasoned that “[the mother’s] proposed actual-agreement requirement is not only unsupported by the Convention’s text and inconsistent with the leeway and international harmony the Convention demands; her proposal would thwart the Convention’s ‘objects and purposes’… An actual-agreement requirement would enable a parent, by withholding agreement, unilaterally to block any finding of habitual residence for an infant. If adopted, the requirement would undermine the Convention’s aim to stop unilateral decisions to remove children across international borders. Moreover, when parents’ relations are acrimonious, as is often the case in controversies arising under the Convention, agreement can hardly be expected.”

Justice Ginsberg also noted that domestic violence poses an “intractable” problem in Hague Abduction Convention cases, but there are provisions that allow courts “to refrain from ordering a child’s return to her habitual residence 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.’”

The Court found that there was no evidence that the father abused the child in question, and deferred to precedent disallowing consideration of psychological harm that the parties’ daughter might suffer as a result of returning to Italy without her mother.

Consult Scaringi Law for Legal Advice and Advocacy

If you are concerned about your legal rights regarding a family law matter—such as those concerning child custody—you should retain the services of an experienced attorney from Scaringi Law. As a full-service law firm, you can benefit from the counsel of an experienced family law attorney in preserving your legal rights in cases involving child custody disputes.

Please call us at (717) 775-7195 or contact our office online to arrange for an initial consultation about your case today.


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