Monasky v. Taglieri

1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held. 2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.

Petitioner and Respondent married in the United States and shortly after moved to Italy, Respondent’s country of citizenry. Fraught with domestic violence, Petitioner sought to end the marriage and returned to the United States with their child. Respondent filed a Hague Convention petition in district court to order the return of the child to Italy and it was granted. Under the Hague Convention, children who are wrongfully removed from their country of “habitual residence” must be returned to that country. Petitioner appealed, but was denied a stay of the return order by the Sixth Circuit and the Supreme Court. An Italian court then held an ex parte trial that terminated Petitioner’s parental rights. The Sixth Circuit agreed to a rehearing en banc. Applying “clear-error” review, the court held that the “subjective agreement between parents” is “sufficient,” but not “necessary” in deciding habitual residence. The decision deepened the circuit split as to the standard of review and the necessity of a subjective agreement in such cases. Petitioner argues that it is necessary to bring uniformity to matters involving the Hague Convention, ensuring that future adjudication on such matters are consistent. Petitioner asserts that the return of a child to its country of habitual residence should not be left to the chance of in which circuit a petition may be filed.