Like Home: The New Definition of Habitual Residence

The Wizard of Oz story about Dorothy clicking her ruby slippers to go home is kind of like how lawyers are trying to help kids who have been taken to a different country by a parent. But it’s not easy, because different courts have different rules about when a child is considered to be living in a place for a long time. The U.S. Supreme Court just made a big decision about this in the Monasky v. Taglieri case. This article explains the rules and the Monasky case so that people can understand how it affects kids who have been taken away from their home country. The Hague Conference is based in the Netherlands and works to unite international laws about private matters. They have made over 40 agreements with member countries to help with things like child abduction. The U.S. follows these agreements with a law called ICARA. This law gives both federal and state courts the power to handle cases about children being taken from one country to another. The U.S. State Department is in charge of stopping abductions and helping when they do happen. They also make reports about countries that don’t follow the agreements and cases that are still going on after 18 months. In 2014, Congress changed the ICARA law because it was hard for American parents to get their kids back from other countries that signed the Hague Convention. One famous example was when Sean Goldman was taken to Brazil by his mom and a court there gave custody to the mom’s new husband after she died. It took five years, but Brazil’s Supreme Court finally ordered Sean to return to his dad in the US. This led to the Sean and David Goldman Act, which gave more power to the State Department to help in these cases and made it easier for parents to get help. The left-behind parent has to prove that their child was taken from their home in another country without permission, and that the parent had custody rights at the time. If they can prove this, the child has to be returned unless the parent who took the child can show certain reasons why the child should not go back. The term “habitual residence” is important, but it’s not clearly defined in the law, so courts have different ways of deciding where a child’s home is. In the US, different courts have different rules for deciding this. Some courts look at what both parents wanted for the child’s residence when deciding where the child should live. Other courts focus on how well the child has adjusted to living in a new place. One court chose to go with the parents’ wishes for very young children. Another court decided to combine the two approaches. Michelle Monasky and Domenico Taglieri are a married couple from Ohio and Italy, respectively. They had a daughter in Italy, but their marriage had problems and they were living separately. When Monasky decided to leave Taglieri and return to the United States with their daughter, Taglieri filed a legal action to try to stop her. The court originally ruled in favor of Taglieri, but Monasky appealed the decision. Monasky and her child returned to Italy after the Appeals Court and Supreme Court denied her request to stay in the US. The Supreme Court clarified that a child’s habitual residence is where they have lived for a significant amount of time, and that there is no single rule to determine this. The Court also decided that the “clear error” standard of review would be used for appeals in cases like this, which means that the trial court’s decision would not be overturned unless it was clearly wrong. Justices Thomas and Alito both agreed that the habitual residence standard is based on specific circumstances in each case. They decided to not send the case back to lower courts because it would take too long, and the Hague Convention aims to resolve cases within six weeks. The Supreme Court ordered the child to be returned to Italy immediately. The Hague Convention is an international agreement about children who have been taken from one country to another by one of their parents. It helps decide where the child should live and doesn’t make decisions about custody. In the US, there are laws based on the Hague Convention that help decide these cases. The main thing the courts look at is where the child was living before they were taken to another country, and whether both parents agreed to move the child. Two court cases are referenced, Gitter v. Gitter and Monasky v. Taglieri, which deal with child abduction and the Hague Child Abduction Convention. The author, Ronald H. Kauffman, is a certified family law attorney and thanks another attorney, Andrew Zashin, for his input. The column was submitted on behalf of the Family Law Section. The Florida Bar aims to promote duty, service, justice, and jurisprudence.

Source: https://www.floridabar.org/the-florida-bar-journal/like-home-the-new-definition-of-habitual-residence/