Monasky v. Taglieri

TEST TO DETERMINE “HABITUAL RESIDENCE”

Monasky argues that based on the Hague Convention’s text and context, courts should only grant a request to return a child to a state if the parents actually agreed that the child should live in that state. Brief for Petitioner, Michelle Monasky at 28–29. She maintains that it is impossible to determine what the parents’ shared intent is absent actual agreement between the parents about where to raise the child. Id. Monasky argues that the Hague Convention’s text supports a requirement of actual agreement because no residence can be “habitual” if there is no meaningful connection between the child and the place. Id. at 31. Thus, unlike a child’s domicile, which merely mirrors that of the parents, habitual residence incorporates notions of “continuity and settled purpose” that only social integration with the surroundings or the parents’ intent can satisfy. Id. at 32. Monasky furthers that it would be nonsensical for a court to hold that both parents intended for a child to live in a given state when the parents did not agree on where the child should live. Id. at 28–29.

Monasky also contests the Sixth Circuit’s assumption that every child must have a habitual residence. Id. at 41–42. She argues that the Hague Convention does not sanction thrusting a habitual residence on a child who lacks social, cultural, and linguistic knowledge of the state that a court designates. Id. Indeed, Monasky continues, the Hague Convention is intended to provide a child with a stable environment, so it sanctions removal where the child is being removed from an unstable environment. Id. In any event, Monasky stresses, A.M.T. was not habitually residing in Italy at the time that Monasky returned with A.M.T. to the United States. Id. at 49. She argues that A.M.T.’s multiple residences in Italy, the domestic-violence threat, and Monasky’s intention to return to the United States as soon as A.M.T.’s passport became viable are strong evidence, taken together, that Monasky firmly intended to raise A.M.T. in the United States. Id. at 51­­–52.

Taglieri counters that the Hague Convention’s text and context require courts to determine habitual residence in light of all available facts. Brief for Respondent, Domenico Taglieri at 23. He argues that the parents’ intent is only one factor that courts may consider, and thus an actual-agreement requirement would obscure the fact-sensitive inquiry that the Hague Convention drafters contemplated. Id. at 32–33. Taglieri continues that courts must also consider facts illustrating a child’s ties to the state, such as the child’s length of residence, school enrollment, language competency, social activities, immigration status, and reasons why the child was present in a state. Id. at 36–37. This fact-sensitive reading, Taglieri stresses, accords with foreign courts’ interpretations of the habitual residence requirement, which are due significant weight. Id. at 33–34.

Taglieri furthermore argues that requiring parents’ actual agreement would under-protect children involved in custody disputes because the parents are unlikely to come to any agreement. Id. at 41. Thus, Taglieri continues, if actual agreement were the right test, then because it is so difficult to satisfy, it would create a presumption that a child has no habitual residence when one parent removes the child to a foreign state. Id. This presumption, Taglieri concludes, is contrary to the Hague Convention’s fundamental goal to prevent one parent’s removal of a child in violation of the other parent’s custody rights. Id. at 40. Moreover, Taglieri maintains that because the District Court properly applied a detailed analysis of all the relevant facts, the Supreme Court should uphold the judgment that A.M.T. be returned to Italy. Id. at 55.

STANDARD OF REVIEW

Monasky argues that appellate courts should review lower courts’ habitual-residence determinations de novo. Brief for Petitioner at 19. Monasky argues that Pierce v. Underwood controls the standard-of-review question. Id. According to Monasky, under Pierce, appellate courts review de novo if (1) a statute so requires, (2) appellate courts have historically done so, or (3) appellate courts are better positioned than lower courts to rule on the issue under review. Id. Monasky continues that although neither the Hague Convention nor Congress have defined habitual residence, the Hague Convention’s implementing statute, 22 U.S.C. § 9001(b)(3)(b), recognizes the need for uniformity in the law between the United States and other signatories. Id. at 19–20. Uniformity, Monasky argues, requires de novo review because any less searching standard would permit lower courts to rule differently on the same facts. Id. at 20–21. Moreover, Monasky contends, American appellate courts universally applied de novo review until the Fourth Circuit and Sixth Circuits’ unexplained deviations. Id. at 21–22.

Monasky further maintains that appellate courts are better positioned to rule on habitual residence because lower courts cannot apply the rule without guidance. Id. at 23. Monasky continues that habitual residence is like probable cause and reasonable suspicion, determinations of which appellate courts also review de novo. Id. Thus, Monasky concludes that the Sixth Circuit was wrong to rely on the Hague Convention’s explanatory report stating that habitual residence is a question of pure fact, because determining a child’s habitual residence requires examining facts through a “complex of values”— stability, continuity, and settled purpose. Id. at 27.

Taglieri counters that U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC is controlling on the standard-of-review issue because a determination of habitual residence involves mixed questions of law and fact. Brief for Respondent at 46. But when a lower court’s decision hinges primarily on interpreting facts, Taglieri continues, appellate courts must apply the clear-error review standard. Id. Taglieri contends that habitual residence is fact-sensitive because although courts often consider evidence of the parents’ intent and the child’s ties to a state, courts are not limited to these sources of evidence. Id. at 36–37. Responding to Monasky’s statute-based argument, Taglieri argues that Congress’s policy of uniformity with other signatory states does not require de novo review of habitual residence; it merely stated Congress’s desire that American courts give some precedential weight to courts of signatory states. Id. If anything, Taglieri argues, Congress’s preference for uniformity militates in favor of a clear-error review standard because foreign courts have also treated habitual-residence determinations as fact intensive. Id.

Finally, contrary to Monasky’s argument that appellate courts are better positioned to determine habitual residence, Taglieri maintains that the fact sensitivity of habitual residence precludes extensive appellate review. Id. at 51. Moreover, Taglieri argues, habitual residence is fundamentally different from reasonable suspicion and probable cause, because unlike constitutional rules, habitual residence does not require any case-by-case development of the law that would justify intrusive appellate oversight. Id. at 52.