On February 25, 2020, the U.S. Supreme Court decided Monasky v. Taglieri, holding that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings. A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

Michelle Monasky, a U.S. citizen, brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned the United States District Court for the Northern District of Ohio for the daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.” The district court granted Taglieri’s petition after a four-day bench trial, finding that Monasky and Taglieri had exhibited a “shared intention” to raise their daughter in Italy. A panel of the Sixth Circuit affirmed, as did a divided en banc Sixth Circuit. Monasky petitioned the Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents. The Supreme Court also granted certiorari to resolve a division in the Courts of Appeals over the appropriate standard of review of a trial court’s habitual-residence determination.

The Supreme Court affirmed. The Court rejected Monasky’s “actual agreement” standard and held that the determination of a child’s habitual residence depends on a totality-of-the-circumstances analysis. The Court noted that the Hague Convention does not define “habitual residence,” but relied on the Convention’s text, its negotiation and drafting history, and decisions from the courts of other signatories to conclude that “[t]he place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence,” even absent actual agreement between the parents. That determination is a “fact-driven inquiry into the particular circumstances of the case.” The Court also noted that Monasky’s proposed actual-agreement requirement “would leave many infants without a habitual residence, and therefore outside the Convention’s domain” and that the Hague Convention always entitles courts concerned about domestic violence to refrain from ordering a child’s return to his or her habitual residence if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Resolving a circuit split, the Court also held that a trial court’s habitual-residence determination is primarily a question of fact, entitled to clear-error review. The Court nevertheless declined to remand for further factfinding, noting that the parties had not identified any additional facts that the district court did not already have an opportunity to consider during the four-day bench trial.

Justice Ginsburg authored the opinion of the Court, in which Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined and in which Justice Thomas joined in part. Justices Thomas and Alito each authored opinions concurring in part and concurring in the judgment.