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Where Is a Child’s Habitual Residence?




Historically, it was relatively rare to see a family comprised of members from different countries. Today, it is easier to find families with a more international background. As a corollary, it is also easier to see family law disputes arise between individuals with different nationalities. This raises the question as to what country’s laws govern such disputes.

The legal uncertainty in international family law disputes allowed situations where a parent takes their child to their home country, avoiding the judicial decrees of the other parent’s nation.

To address this issue, several countries came together and formed the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction

Under The Hague Convention on the Civil Aspects of International Child Abduction—also known as the Hague Abduction Convention—one country agrees to respect the child custody orders rendered by another member country and help return wrongfully removed children to that country.

To have a child return to their home country under the Hague Abduction Convention, a parent must file an application for their return with a Central Authority designated by a country’s government. In the United States, parents from foreign countries submit these “return applications” with the U.S. Department of State.

Applications demanding the return of a child pursuant to the Hague Abduction Convention revolve around the issue of the child’s “habitual residence.”

As one of the member countries of the Hague Abduction Convention, the U.S. enacted legislation implementing the Convention’s terms in the form of The International Child Abduction Remedies Act (ICARA), 22 USC § 9001 et seq. Under ICARA, the U.S. is responsible for facilitating the return of children who were wrongfully removed from their home country.

ICARA defines “wrongful removal” as the taking of a child in violation of the terms of a valid custody order “under the law of the State in which the child was habitually resident immediately before the removal.”

Taglieri v. Monasky

Last December, the U.S. Supreme Court granted certiorari for a case regarding the application of ICARA regarding a child’s habitual residence: Taglieri v. Monasky.

In the Taglieri case, a U.S. citizen fled from her allegedly abusive husband who is a citizen of Italy. She returned to the U.S. two months after giving birth to her daughter. The husband obtained an order from an Italian court for custody of the child and asked a federal district court to enforce the Italian custody order and have his child returned to Italy.

The district court ruled in favor of the husband, concluding that Italy was the child’s habitual residence. Although the child’s mother filed an appeal, the Sixth Circuit, as well as the U.S. Supreme Court, denied her motion to stay her daughter’s return to Italy pending the court’s ruling on her appeal.

In affirming the district court’s ruling, the Sixth Circuit held that determination of a child’s habitual residence under the Hague Abduction Convention involves a look at which country the child spends the most time physically present enough to become “acclimatized” to their environment.

However, if the child is too young to become acclimatized to any country, a court will look at the “shared parental intent” of the parties.

Ultimately, the Sixth Circuit affirmed the district court’s ruling. The following passage characterizes the difficulties of international child abduction cases:

Sometimes the only way to resolve a complicated problem is to recognize that there is no single solution. As often happens with child-abduction disputes, the issues are fraught, the fact patterns unfortunate. Escalating acrimony between parents often severs a relationship beyond repair. And that usually results in conflicting testimony as to how things fell apart. But we will not make this case easier, and we are sure to make the next case harder, by assuming the role of principal decision maker. As with other fact-bound inquiries, so with this one. We must trust those with a ring-side seat at the trial to decide whose testimony is most credible and what evidence is most relevant. And to do, we must treat the habitual-residence inquiry as we always have: a question of fact subject to deferential appellate review.

Tagliera v. Monasky, 907 F.3d 404, 411 (6th Cir. 2018).

However, these issues are now in the hands of the U.S. Supreme Court. Attorneys for the parties made oral arguments before the Supreme Court on December 11, 2019. The Court will make a ruling soon, with the eyes of the world watching.

Consult Moshtael Family Law for Legal Advice

If you have questions or concerns regarding your parental rights—such as your rights regarding the care and custody of your children—Moshtael Family Law can help you.

To schedule an initial consultation about your case, please Moshtael Family Law at (714) 909-2561 today.

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