The US Supreme Court is stuck in an epic international child custody battle

Will an Italian court respect an order from the most powerful lawyers in the US?
Will an Italian court respect an order from the most powerful lawyers in the US?
Image: Ephrat Livni
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Yesterday (Dec. 11), the US Supreme Court heard oral arguments in a tragic case about one small child, her battling parents, and international law.

The matter involves an American mother, an Italian father, their baby, and the Hague Convention, which governs global child custody disputes. So the court’s decision will impact more than just one feuding family.

Indeed, it may well affect many parents and children around the world for years to come. This prospect seemed to concern justice Stephen Breyer especially. “We don’t know every family in the world,” he noted almost mournfully at the hearing.

Family feud

Michelle Monasky and Domenico Taglieri met in the US in 2011, married, and moved to Taglieri’s home country of Italy two years later. There, the relationship quickly deteriorated when Monasky became pregnant in 2014. Monasky says Taglieri became physically and sexually abusive. She stayed in a home for domestic violence victims in Italy for eight weeks after their child—known only as AMT in court papers—was born in early 2015. She then returned to the US with the girl.

Under the Hague Convention, international fights over custody are to be resolved in a child’s country of “habitual residence.” This is meant to prevent battling parents from global “forum shopping,” taking their kids to countries where they believe they’ll get more favorable resolutions. So, a parent whose child was taken can move for the kid’s return, which is what Taglieri did.

An Ohio district court in 2016 found that AMT’s habitual residence was Italy and ordered her returned. Meanwhile, Taglieri had Monasky’s parental rights terminated in Italy. The mother kept fighting. But the Sixth Circuit Court of Appeals affirmed the district court’s ruling, reviewing the decision for “clear error” and finding none.

Monasky has challenged the clear error standard at the high court, arguing that “habitual residence” should be reviewed anew on appeal. Furthermore, the district court wrongly concluded that she and Taglieri had a shared intent to raise AMT in Italy, she says. The justices must now decide if the lower courts were correct in their assessment of the case.

Splitting the difference

The US government filed a brief that supports neither parent, technically, and at the hearing argued a position that splits the difference between Monasky’s and Taglieri’s claims.

The US says that “clear error” is the proper standard of review—as the father contends— but that this case should be remanded for a new “habitual residence” determination anyway because the district court made a mistake when applying the test, as the mother argues.

The government’s interest here is in the efficient and uniform application of the Hague Convention in American courts. The law is meant to be applied reliably around the world and courts on many continents have opined that the “habitual residence” test is flexible because it must accommodate the specifics of each different family situation.

Or, as Breyer put it, citing his understanding of a British court’s opinion, “[T]his is family law. You know, families differ. There are vast differences. And don’t treat these words ‘habitual residence’ as if it’s like a black-letter tax code. They’re more like a factual matter.”


Monasky wants the court to issue a return order for her child based on a finding that the habitual residence test was both wrongly applied and reviewed. But that doesn’t mean she’d actually get to be with her child.

The justices didn’t seem totally convinced of their might on the world stage. Justice Ruth Bader Ginsburg pointed out that an Italian court would have to respect the order. Given the fact that Monasky’s parental rights were terminated in her absence, there’s no indication it will.

Assuming an Italian court did honor such an order, chief justice John Roberts added, it would have to hear challenges too before deciding whether to return AMT. This “would just delay the proceedings that have already been delayed far longer than the Convention contemplated,” he said.

The case has dragged on for years, yet the Hague Convention aims for a resolution within six weeks. Roberts seemed to think that issuing a return order after the child has now spent years in Italy would stretch the bounds of precedent.

The children

Perhaps most tragically, resolution of the legal issues at play in this case won’t necessarily get to the heart of this heartbreaking matter.

In American custody disputes, the family courts use a “best interests of the child” standard. Breyer admitted that if “hypothetically, oddly enough” he wasn’t interested in the actual law at play here but just what’s best for the kid, like a regular American family court in a national matter, he’d be at a loss as to the proper resolution. ”I don’t know what to do if my object is to try to secure the best interests of the child,” Breyer confessed.

Still the high court didn’t take this case just to decide what’s right for one child. The justices must address the technical question about the proper standard of review for habitual residence determinations.

But if families are all different, the right decision for AMT may lead to trouble down the line, Breyer noted. He seemed troubled by the fact that he and his colleagues were tasked with deciding a family law matter with both intimate and international implications. “As soon as nine people who know—speaking for myself, know very little about [family law]—start laying down black-letter standards, all we’re going to do is maybe help people in some cases and just cause chaos and hardship in others,” he said.

Nonetheless, the court has until late June to issue a decision, and based on the Hague Convention’s emphasis on efficiency, the sooner the better.