WASHINGTON (CN) — The Supreme Court ruled Tuesday against an American woman who took her newborn out of Italy, fleeing the husband she says physically abused her even through her pregnancy.
Michelle Monasky says the only reason she carried her baby to term in Italy was that doctors warned her about a miscarriage. The conception itself was allegedly the result of sexual assault by her husband, Domenico Taglieri.
Justice Ruth Bader Ginsburg wrote for the high court Tuesday, however, that the Hague Convention on the Civil Aspects of International Child Abduction contemplates no such standard.
“The bottom line: There are no categorical requirements for establishing a child’s habitual residence — least of all an actual-agreement requirement for infants,” Ginsburg wrote, joined by all but two of her colleagues. “Monasky’s proposed actual-agreement requirement is not only unsupported by the convention’s text and inconsistent with the leeway and international harmony the convention demands; her proposal would thwart the convention’s ‘objects and purposes.’”
Ginsburg noted that agreements are hardly the norm for a couple on the outs, and that Monasky’s proposal “would undermine the convention’s aim to stop unilateral decisions to remove children across international borders.”
Quoting a prior defeat for Monasky at the Sixth Circuit, Ginsburg said her “approach would create a presumption of no habitual residence for infants, leaving the population most vulnerable to abduction the least protected.”
Monasky did not speak Italian and spent most of her pregnancy alone in Milan since Taglieri had moved 165 miles away for work in Lugo.
Taglieri visited some weekends, but Monasky says the trips were often violent and that she emailed Taglieri about getting a divorce in February 2015, just before she delivered her baby, listed in court records as A.M.T.
With her husband still in Lugo, Monasky got help with her newborn in the first two weeks from her mother. A.M.T. was 6 weeks old when Monasky took her to a safe house for battered women. It took two weeks for the baby to get a U.S. passport allowing them to leave the country.
Ginsburg allowed that the possibility of domestic violence complicates the determination of habitual residence.
“We doubt, however, that imposing a categorical actual-agreement requirement is an appropriate solution, for it would leave many infants without a habitual residence, and therefore outside the convention’s domain,” she wrote. “Settling the forum for adjudication of a dispute over a child’s custody, of course, does not dispose of the merits of the controversy over custody. Domestic violence should be an issue fully explored in the custody adjudication upon the child’s return.”
In any case, Ginsburg emphasized, the Hague Convention already contains a provision where a child at risk of physical or psychological harm can be shielded from returning to her habitual residence.
As for A.M.T., Monasky did not demonstrate that the child suffered any abuse from Taglieri, even while the allegations of her experience left the District Court, in its own words, “deeply troubled.”
Justice Clarence Thomas concurred in the judgment, writing separately to complain that Ginsburg overly relied on the Hague treaty.
Justice Samuel Alito concurred in the judgment as well, taking issue with the standard of review, which he said should be abuse of discretion, not clear error, on appeal.
Taglieri’s attorney Andrew Pincus with the firm Mayer Brown did not return an email seeking comment.
Amir Tayrani, an attorney for Monasky with the firm Gibson Dunn, also did not return an email seeking comment.
Tuesday’s opinion came two months after oral arguments.