U.S. Supreme Court, Monasky v. Taglieri, Docket No. 18-935, J. Ginsburg

International Child Ab­duction

Hague Convention on the Civil Aspects of International Child Ab­duction

Habitual Residence

Swift Resolution (Six-Week Target Time for Resolving a Return-Order Petition)

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), implemented in the United States by the International Child Abduction Remedies Act, 22 U.S.C. §9001 et seq., provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country.

(Hague Conference on Private Int’l Law, Con­vention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Ab­duction, Status Table, https://www.hcch.net/en/instruments/ conventions/status-table/?cid=24.)

The Convention’s return requirement is a “provisional” remedy that fixes the forum for custody proceedings. Sil­berman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U. C. D. L. Rev. 1049, 1054 (2005). Upon the child’s return, the custody adjudication will proceed in that forum. To avoid delaying the custody proceeding, the Convention instructs contract­ing states to “use the most expeditious procedures avail­able” to return the child to her habitual residence. Art. 2, Treaty Doc., at 7. See also Art. 11, id., at 9 (prescribing six weeks as normal time for return-order decisions).

T. petitioned the U. S. District Court for the Northern District of Ohio for A. M. T.’s return to Italy under the Convention, pursuant to 22 U. S. C. §9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.”

A child’s habitual residence depends on the totality of the circum­stances specific to the case, not on categorical requirements such as an actual agreement between the parents.

(…) A child habitu­ally resides where she is at home.

This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense.” Redmond v. Redmond, 724 F. 3d 729, 744. Acclima­tion of older children and the intentions and circumstances of caregiv­ing parents are relevant considerations, but no single fact is dispositive across all cases. The treaty’s “negotiation and drafting history” cor­roborates that habitual residence depends on the specific circum­stances of the particular case. Medellín v. Texas, 552 U. S. 491, 507. This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention.

(…) Domestic violence should be an issue fully explored in the custody adjudication upon the child’s return. The Convention also has a mechanism for guarding children from the harms of domestic violence: Article 13(b) allows a court 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.”

(…) A remand would consume time when swift resolution is the Convention’s objective. The instant return-order pro­ceedings began a few months after A. M. T.’s birth. She is now five years old. The more than four-and-a-half-year du­ration of this litigation dwarfs the six-week target time for resolving a return-order petition. See Art. 11, Treaty Doc., at 9. T. represents that custody of A. M. T. has so far been resolved only “on an interim basis,” Brief for Respond­ent 56, n. 13, and that custody proceedings, including the matter of M.’s parental rights, remain pending in It­aly. Tr. of Oral Arg. 60–61. Given the exhaustive record before the District Court, the absence of any reason to an­ticipate that the District Court’s judgment would change on a remand that neither party seeks, and the protraction of proceedings thus far, final judgment on A. M. T.’s return is in order.

(U.S. Supreme Court, February 25, 2020, Revised February 26, 2020, Monasky v. Taglieri, Docket No. 18-935, J. Ginsburg)