Habitual Residence for Babies Puts High Court at Odds

WASHINGTON (CN) — An American woman who took her newborn out of Italy at 8 weeks fought at the Supreme Court on Wednesday to upend the standards of what constitutes habitual residence in custody battles over infants.

Though the Sixth Circuit ruled that Michelle Monasky violated child-abduction rules in taking the child away from her father, Domenico Taglieri, the justices in Washington appeared uncertain in oral arguments of how to proceed.

“What do we do? I mean, I think in their brief they said she doesn’t speak Italian and doesn’t have a job. … This standard that I read, she didn’t mention this, but it says you can’t put the child in an intolerable situation,” Justice Stephen Breyer said. “You’d think where the mother is being beaten up, that would be an intolerable situation.”

In this case, Monasky claims that the physically abuse she suffered from Taglieri continued into her ninth month of pregnancy in early 2015, and that the conception itself was the result of sexual assault. She says the only reason she stayed in Italy during her pregnancy was that doctors warned her about a miscarriage.

Since Taglieri had moved 165 miles away from her while she was pregnant, Monasky says she only saw him on some weekends for increasingly violent visits.

With her husband still 165 miles away after she gave birth, Monasky got help in the first two weeks from her mother. At 6 weeks, Monasky and her child went to a safe house for battered women. It took two weeks for the baby, described in the case record only as A.M.T., to get a U.S. passport allowing them to leave the country.

At oral arguments this morning, Taglieri’s attorney Andrew Pincus said there were ways to escape this abuse and remain in Italy, including separation.

Pincus argued that Monasky’s actions up until she fled showed an intent to remain in Italy.

“I think one of the unusual facts could be in a situation where it was clear that the abused parent wanted to get away, was determined to get away, and the evidence is the husband thwarted her at every turn,” Pincus said. “That’s not what the district court found here.”

Justice Samuel Alito asked the Mayer Brown lawyer about a child’s indifference to residence: If a child is young enough, in this case an infant, why would it make a difference where they were raised?

Pincus replied that the habitual-residence standards of the Hague Convention on the Civil Aspects of International Child Abduction serve both to identify the proper country to host custody disputes and to deter parents from internationally abducting their children.

While the government supported neither position Wednesday, Assistant to the U.S. Solicitor General Sopan Joshi argued the court should interpret Hague Convention standards consistently. No part of this standard determines the age of a child as a mitigating factor when determining habitual residence.

“Habitual residence is a flexible, fact-intensive concept,” Joshi said. “That’s precisely why the drafters and ratifiers of the Hague Convention picked it over the alternatives, like domicile or nationality. It asks a very straightforward question: where does the child usually live? Where’s the child at home?”

Alito said he felt the government’s position mirrored foreign court decisions related to Hague Convention standards, which were flexible interpretations. This was unhelpful if there was no definition of habitual residence.

Chief Justice John Roberts said infants don’t have many habits, “other than one or two.”

Joshi disagreed, however, when Roberts said the habit of a child was unimportant to the drafters of the Hague Convention standards when trying to establish residency.

“It isn’t,” Joshi said. “I think it’s important to realize that, although the word is habitual the term habitual residence and the use of the word habitual originated in the Hague Convention in French. Habitual in that context translated means usual or customary. It doesn’t necessarily mean as a habit.”

Monasky’s lawyer Amir Tayrani argued Wednesday that, since A.M.T. was removed from Italy at such an early age, there was nothing habitual about her time in Italy.  An attorney with the firm Gibson, Dunn and Crutcher, Taryani also said there was no “meeting of the minds” between the parents on their intent to raise their child in Italy.

Justice Ruth Bader Ginsburg told Tayrani this interpretation could wreak havoc on a swathe of custody cases governed by this convention, causing many children to be disenfranchised from their current countries, or homes.

Tayrani said the interpretation could be narrow: Only infant children who had no time to acclimate to their surroundings should be considered to have no habitual residency.

Ginsburg also noted that many custody disputes include an acrimonious relationship between the parents, and that Taryani’s interpretation would hold that these couples had no such agreement on the upbringing of their child.

Tayrani again said the interpretation he seeks is limited. “That would only be the case your honor, if the acrimony was simultaneous with the pregnancy and birth,” he said. “In other cases, involving infants, the breakdown of the relationship may occur later in time. And if there was a meeting of the minds after the child’s birth, that would be controlling. A single parent could not unilaterally disavow that agreement.”

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