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HABITUAL RESIDENCE

US Supreme Court “aligns” with treaty partners in international child custody dispute

US and Italian flags side by side.
Reuters
A so far short life is characterized by a long legal ride with global implications.
By Ephrat Livni
Washington DCPublished Last updated This article is more than 2 years old.

The US Supreme Court unanimously affirmed on Tuesday lower court rulings that a kid at the center of an international custody dispute—ruled by the Hague Convention on the Civil Aspects of International Child Abduction—is rightly in Italy.

The child, known only as AMT in court documents, is now 5 years old and has been in Italy for years. Her American mother, Michelle Monasky, met and married the Italian father, Domenico Taglieri, in the US, but AMT was born in Italy. The mother fled back to the States with her newborn weeks after the girl’s birth, saying the father was abusive.

He challenged this move in an American federal court, arguing that he never approved it. The trial court found AMT belonged in Italy and a federal appeals court found no error in the ruling that the child’s habitual residence wasn’t the US.

The Supreme Court, in an opinion by justice Ruth Bader Ginsburg, agreed. Ginsburg disputed Monasky’s claims that lower courts mistakenly concluded Italy was the child’s habitual residence despite the parents having no explicit agreement on the matter. The Hague Convention requires a child who is wrongfully removed from their habitual residence to be returned but doesn’t define the term. Still, related texts indicate that a child habitually resides where she is at “home.”

AMT’s whole brief life before Monasky brought her to the US was spent in Italy. And courts around the world in countries that are treaty signatories haven’t imposed any agreement requirement like the one Monasky proposed.

Ginsburg and her colleagues believe doing so would put the US at odds with treaty signatories, and more importantly thwart the goal of protecting children. Allowing the habitual residence inquiry to remain flexible and fact-driven keeps them safe. Requiring a contract for habitual residence would not necessarily, as the mom claimed, protect children who might become victims of domestic abuse.

“Locating a child’s home is a fact-driven inquiry, turning on the totality of the circumstances of the particular case,” Ginsburg said in a statement on the case at a hearing on Tuesday. “Inquiry of that order aligns our Court’s treatment of the habitual residence determination with that of our treaty partners.”

Ginsburg also noted that the trial court had found was AMT’s return to Italy didn’t put her at risk of grave harm and there was no reason to believe a new inquiry now would end differently.

Monasky’s loss in this nation’s highest court doesn’t signal the end of the fight over the child, however. The “protracted” litigation that has lasted almost as long as the girl’s short life will presumably soon continue in Italy, where the mother has for now lost parental rights and continues to fight to reunite with her child. That case was pending the Supreme Court’s decision.

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