Delray Beach Family Law Attorneys 
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Scales of justice

The Supreme Court’s Decision in Monasky v. Taglieri

Family law cases do not often reach the docket of the U.S. Supreme Court. This is because family law issues primarily involve state law rules. In contrast, the U.S. Supreme Court typically deals with issues concerning federal law, disputes regarding the laws of different states, controversies between states themselves, and cases between individuals and states. But, every once in a while, a family law case will find its way before the Supreme Court, such as in Obergefell v. Hodgesand Monasky v. Taglieri,decided in 2015 and 2020, respectively.

Background of Monasky v. Taglieri

The Monasky case involved the interpretation of the Hague Convention on the Civil Aspects of International Child Custody—or “The Hague Abduction Convention” for short. The United States is a member of The Hague Abduction Convention, which tries to address the issue of international child custody by creating uniform standards for the recognition and application of the judgments and orders of foreign courts.

Under The Hague Abduction Convention, national governments are responsible for facilitating the return of children who were taken by a parent to one country to avoid their child custody obligations in another country.

Generally, a child must be returned to their country of “habitual residence.” Although The Hague Abduction Convention does not define the term “habitual residence,” courts have interpreted it to mean the country where a child has become “acclimatized” to the environment and culture. This issue inherently requires a fact-intensive analysis.

However, infants are too young to have acclimatized to the environment or culture of any one country. In such cases, courts have held that a child’s country of habitual residence can be evidenced by the “shared parental intent” of the parties. This can be shown through the subjective intent of the parents and any objective evidence of habitual residency.

Shared parental intent can be demonstrated in the following ways, among others:

  • Where the child was born
  • The parties’ explicit plans to have a child live in a particular country
  • The parties’ ownership of a family residence, and where it is located
  • Relocating together to a specific country

In Monasky, a U.S. citizen living in Italy unilaterally decided to return to the United States with her three-month old daughter, leaving her husband behind. The decision to flee was based on the allegedly abusive nature of the marriage. In her absence, the father obtained an order from an Italian court terminating the mother’s parental rights and sought enforcement of the order in the U.S.

U.S. courts held that the child must return to Italy based on a finding that it was the child’s place of habitual residence. As the child was only three-months old at the time, a determination of habitual residence, the determination of habitual residence was to be based on evidence related to the parties’ shared parental intent. The mother argued that any shared intent to make Italy the child’s home falls away in light of her new intention to leave her abusive husband. The mother further argued that, in such cases, returning the child to Italy required proof of an actual agreement between the parties as to the child’s place of habitual residence.

The Supreme Court’s Decision

In a unanimous decision—with two justices concurring in the outcome, but differing on aspects of the majority’s reasoning—the U.S. Supreme Court ruled in favor of returning the child to Italy. Writing for the majority, Justice Ruth Bader Ginsberg reiterated the fact-intensive nature of international child custody disputes under The Hague Abduction Convention.

The Court disagreed with the notion that an actual agreement was required to demonstrate the habitual residence of an infant child, reasoning that it “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.”

The Court noted that domestic violence is an “intractable problem in Hague Convention cases involving caregiving parents fleeing with their children from abuse.” However, the Court held that the issue concerning a child’s habitual residence only resolves the question of which court has jurisdiction to resolve child custody. It reasoned that The Hague Abduction Convention did not give the U.S. jurisdiction to resolve the underlying custody dispute. As a result, issues of domestic violence may still be addressed in a court in the child’s country of habitual residence.

U.S. courts may refuse to return a child to their country of habitual residence if doing so would put the child at “grave risk.” The Supreme Court noted that the lower courts found no such risk to the child as the husband’s alleged abuse was directed exclusively toward the mother.

Consult Beaulieu-Fawcett Law Group, P.A. for Answers to Your Legal Questions

Issues concerning international child custody disputes can be challenging to navigate without the advice of an experienced attorney. At Beaulieu-Fawcett Law Group, P.A., our legal team strives to provide you with quality legal representation based on a current understanding of the law, in light of recent developments.

Please call us at (561) 600-5711 or contact us online to learn more about our services.


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