Supreme Court of the United States, February 25 2020
In Monasky v. Taglieri the Supreme Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent.
Monasky is a U.S. citizen. Taglieri an Italian citizen. They were married in 2011, when they were living in the U.S. They relocated to Italy in 2013. Despite marital problems and physicall abuse, Monasky became pregnant in 2014. Tagliere then moved to Lugo, which was 3 hours away. However, the parties continued to collaboratively make plans for the birth of the child in Italy. They researched childcare options, purchased baby supplies and obtained a larger residence in Milan.
The child was born in February 2015. Then Monasky told Taglieri that she wanted to divorce and that she was anticipating returning to the U.S. Later, Monasky and the child joined Taglieri in Lugo. In March 2015, Monasky and the child moved to a domestic violence safe house. Two weeks later, Monasky and the baby moved to Ohio.
Taglieri petitioned the District Court in Ohio for the return of the child to Italy under the Hague Convention. He argued that Italy was the child’s country of habitual residence.
No definitive plan
The District Court determined that the facts of the case, including the infancy of the child at the time she was taken to the U.S., supported the conclusion that the parties’ shared intent was to raise the child in Italy and that the parents had no definitive plan to move to the U.S. Therefore the District Court determined that the child’s habitual residence was Italy and ordered the return to Italy. The child, then 2 years old, was returned to Italy to her fathers’care.
The term ‘habitual residence’ is not defined in the Hague Convention. It’s definition is given in case law. Normally, courts look for the place where the child has ‘acclimatized’. Infants however are typically deemed too young to have acclimatized anywhere. Therefore, in case of an infant, courts look for ‘shared parental intent’ when determining a child’s habitual residence.
Scope of the appeal
The question of a child’s habitual residence is treated by U.S. courts as primarily fact based. Therefore, on appeal, a trial court’s fact-finding determinations are typically reviewed deferentially and are overturned only if the appeal court finds clear error. This was also established in this case.
The Supreme Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent. The single fact that there was no agreement was not dispositive on the issue of whether the parties had ‘shared parental intent’ to raise their child in Italy. The Supreme Court stated that the determination of a child’s habitual residence depends on the totality of circumstances, and that an actual agreement between the parents is not necessary to establish habitual residence. The Supreme Court affirmed the Sixth Circuit’s judgment that the District Court’s findings were not clearly erroneous and that the District’s Court’s return order should be upheld.
When you have an international abduction case about an infant, you need al the evidence you can get about the intent of the parents before the abduction. It could be e mails, what’s app messages, inquiries, contracts, receipts, visits to doctors or other professionals, browser history, declarations by relatives etcetera. This could proof intent, since an actual agreement is not required.