Monasky v. Taglieri , 206 L. Ed. 2d 9 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MONASKY v. TAGLIERI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 18–935. Argued December 11, 2019—Decided February 25, 2020
The Hague Convention on the Civil Aspects of International Child Ab-
duction (Hague Convention or Convention), implemented in the
United States by the International Child Abduction Remedies Act, 22
U.S. C. §9001 et seq., provides that a child wrongfully removed from
her country of “habitual residence” ordinarily must be returned to that
country.
Petitioner Monasky, a U. S. citizen, asserts that her Italian hus-
band, respondent Taglieri, became abusive after the couple moved to
Italy from the United States. Two months after the birth of the cou-
ple’s daughter, A. M. T., in Italy, Monasky fled with the infant to Ohio.
Taglieri petitioned the U. S. District Court for the Northern District of
Ohio for A. M. T.’s return to Italy under the Convention, pursuant to
22 U.S. C. §9003(b), on the ground that the child had been wrongfully
removed from her country of “habitual residence.” The District Court
granted Taglieri’s petition, concluding that the parents’ shared intent
was for their daughter to live in Italy. Then two-year-old A. M. T. was
returned to Italy. The en banc Sixth Circuit affirmed. Under its prec-
edent, the court first noted, an infant’s habitual residence depends on
the parents’ shared intent. It then reviewed the District Court’s
habitual-residence determination for clear error and found none. In
doing so, the court rejected Monasky’s argument that Italy could not
qualify as A. M. T.’s “habitual residence” in the absence of an actual
agreement by her parents to raise her there.
Held:
1. A child’s habitual residence depends on the totality of the circum-
stances specific to the case, not on categorical requirements such as an
actual agreement between the parents. Pp. 7–14.
(a) The inquiry begins with the Convention’s text “and the context
2 MONASKY v. TAGLIERI
Syllabus
in which the written words are used.” Air France v. Saks, 470 U.S.
392, 397. The Convention does not define “habitual residence,” but, as
the Convention’s text and explanatory report indicate, a child habitu-
ally resides where she is at home. This fact-driven inquiry must be
“sensitive to the unique circumstances of the case and informed by
common sense.” Redmond v. Redmond, 724 F.3d 729, 744. Acclima-
tion of older children and the intentions and circumstances of caregiv-
ing parents are relevant considerations, but no single fact is dispositive
across all cases. The treaty’s “negotiation and drafting history” cor-
roborates that habitual residence depends on the specific circum-
stances of the particular case. Medellín v. Texas, 552 U.S. 491, 507.
This interpretation also aligns with habitual-residence determinations
made by other nations party to the Convention. Pp. 7–12.
(b) Monasky’s arguments in favor of an actual-agreement require-
ment are unpersuasive. While an infant’s “mere physical presence” is
not a dispositive indicator of an infant’s habitual residence, a wide
range of facts other than an actual agreement, including those indicat-
ing that the parents have made their home in a particular place, can
enable a trier to determine whether an infant’s residence has the qual-
ity of being “habitual.” Nor is adjudicating a dispute over whether an
agreement existed a more expeditious way of promoting returns of ab-
ducted children and deterring would-be abductors than according
courts leeway to consider all the circumstances. Finally, imposing a
categorical actual-agreement requirement is unlikely to be an appro-
priate solution to the serious problem of protecting children born into
domestic violence, for it would leave many infants without a habitual
residence, and therefore outside the Convention’s domain. Domestic
violence should be an issue fully explored in the custody adjudication
upon the child’s return. The Convention also has a mechanism for
guarding children from the harms of domestic violence: Article 13(b)
allows a court to refrain from ordering a child’s return to 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.” Pp. 12–14.
2. A first-instance habitual-residence determination is subject to
deferential appellate review for clear error. A trial court’s habitual-
residence determination presents a mixed question of law and fact that
is heavily fact laden. The determination thus presents a task for fact-
finding courts and should be judged on appeal by a clear-error review
standard. See U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S.
___, ___–___. There is no “historical tradition” indicating otherwise.
Pierce v. Underwood, 487 U.S. 552, 558. Clear-error review has a par-
ticular virtue in Hague Convention cases: By speeding up appeals, it
serves the Convention’s emphasis on expedition. Notably, courts of
Cite as: 589 U. S. ____ (2020) 3
Syllabus
other treaty partners also review first-instance habitual-residence de-
terminations deferentially. Pp. 14–16.
3. Given the circumstances of this case, it is unnecessary to disturb
the judgment below and remand the case to give the lower courts an
opportunity to apply the governing totality-of-the-circumstances
standard in the first instance. Pp. 16–17.
907 F.3d 404, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ.,
joined, and in which THOMAS, J., joined as to Parts I, III, and IV. THOMAS,
J., and ALITO, J., filed opinions concurring in part and concurring in the
judgment.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–935
_________________
MICHELLE MONASKY, PETITIONER v.
DOMENICO TAGLIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[February 25, 2020]
JUSTICE GINSBURG delivered the opinion of the Court.
Under the Hague Convention on the Civil Aspects of In-
ternational Child Abduction (Hague Convention or Conven-
tion), Oct. 25, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No.
99–11 (Treaty Doc.), a child wrongfully removed from her
country of “habitual residence” ordinarily must be returned
to that country. This case concerns the standard for deter-
mining a child’s “habitual residence” and the standard for
reviewing that determination on appeal. The petitioner,
Michelle Monasky, is a U. S. citizen who brought her infant
daughter, A. M. T., to the United States from Italy after her
Italian husband, Domenico Taglieri, became abusive to
Monasky. Taglieri successfully petitioned the District
Court for A. M. T.’s return to Italy under the Convention,
and the Court of Appeals affirmed the District Court’s
order.
Monasky assails the District Court’s determination that
Italy was A. M. T.’s habitual residence. First of the ques-
tions presented: Could Italy qualify as A. M. T.’s “habitual
residence” in the absence of an actual agreement by her
parents to raise her there? The second question: Should the
2 MONASKY v. TAGLIERI
Opinion of the Court
Court of Appeals have reviewed the District Court’s habitual-
residence determination independently rather than def-
erentially? In accord with decisions of the courts of other
countries party to the Convention, we hold that a child’s ha-
bitual residence depends on the totality of the circum-
stances specific to the case. An actual agreement between
the parents is not necessary to establish an infant’s habit-
ual residence. We further hold that a first-instance habitual-
residence determination is subject to deferential appel-
late review for clear error.
I
A
The Hague Conference on Private International Law
adopted the Hague Convention in 1980 “[t]o address the
problem of international child abductions during domestic
disputes.” Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014)
(internal quotation marks omitted). One hundred one coun-
tries, including the United States and Italy, are Convention
signatories. Hague Conference on Private Int’l Law, Con-
vention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Ab-
duction, Status Table, https://www.hcch.net/en/instruments/
conventions/status-table/?cid=24. The International Child
Abduction Remedies Act (ICARA), 102 Stat. 437, as
amended, 22 U.S. C. §9001 et seq., implements our Na-
tion’s obligations under the Convention. It is the Conven-
tion’s core premise that “the interests of children . . . in mat-
ters relating to their custody” are best served when custody
decisions are made in the child’s country of “habitual resi-
dence.” Convention Preamble, Treaty Doc., at 7; see Abbott
v. Abbott, 560 U.S. 1, 20 (2010).
To that end, the Convention ordinarily requires the
prompt return of a child wrongfully removed or retained
away from the country in which she habitually resides. Art.
12, Treaty Doc., at 9 (cross-referencing Art. 3, id., at 7). The
removal or retention is wrongful if done in violation of the
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Opinion of the Court
custody laws of the child’s habitual residence. Art. 3, ibid.
The Convention recognizes certain exceptions to the return
obligation. Prime among them, a child’s return is not in
order if the return would place her at a “grave risk” of harm
or otherwise in “an intolerable situation.” Art. 13(b), id.,
at 10.
The Convention’s return requirement is a “provisional”
remedy that fixes the forum for custody proceedings. Sil-
berman, Interpreting the Hague Abduction Convention: In
Search of a Global Jurisprudence, 38 U. C. D. L. Rev. 1049,
1054 (2005). Upon the child’s return, the custody adjudica-
tion will proceed in that forum. See ibid. To avoid delaying
the custody proceeding, the Convention instructs contract-
ing states to “use the most expeditious procedures avail-
able” to return the child to her habitual residence. Art. 2,
Treaty Doc., at 7. See also Art. 11, id., at 9 (prescribing six
weeks as normal time for return-order decisions).
B
In 2011, Monasky and Taglieri were married in the
United States. Two years later, they relocated to Italy,
where they both found work. Neither then had definite
plans to return to the United States. During their first year
in Italy, Monasky and Taglieri lived together in Milan. But
the marriage soon deteriorated. Taglieri became physically
abusive, Monasky asserts, and “forced himself upon [her]
multiple times.” 907 F.3d 404, 406 (CA6 2018) (en banc).
About a year after their move to Italy, in May 2014,
Monasky became pregnant. Taglieri thereafter took up new
employment in the town of Lugo, while Monasky, who did
not speak Italian, remained about three hours away in Mi-
lan. The long-distance separation and a difficult pregnancy
further strained their marriage. Monasky looked into re-
turning to the United States. She applied for jobs there,
asked about U. S. divorce lawyers, and obtained cost infor-
mation from moving companies. At the same time, though,
4 MONASKY v. TAGLIERI
Opinion of the Court
she and Taglieri made preparations to care for their ex-
pected child in Italy. They inquired about childcare options
there, made purchases needed for their baby to live in Italy,
and found a larger apartment in a Milan suburb.
Their daughter, A. M. T., was born in February 2015.
Shortly thereafter, Monasky told Taglieri that she wanted
to divorce him, a matter they had previously broached, and
that she anticipated returning to the United States. Later,
however, she agreed to join Taglieri, together with A. M. T.,
in Lugo. The parties dispute whether they reconciled while
together in that town.
On March 31, 2015, after yet another heated argument,
Monasky fled with her daughter to the Italian police and
sought shelter in a safe house. In a written statement to
the police, Monasky alleged that Taglieri had abused her
and that she feared for her life. Two weeks later, in April
2015, Monasky and two-month-old A. M. T. left Italy for
Ohio, where they moved in with Monasky’s parents.
Taglieri sought recourse in the courts. With Monasky ab-
sent from the proceedings, an Italian court granted Ta-
glieri’s request to terminate Monasky’s parental rights, dis-
crediting her statement to the Italian police. App. 183. In
the United States, on May 15, 2015, Taglieri petitioned the
U. S. District Court for the Northern District of Ohio for the
return of A. M. T. to Italy under the Hague Convention,
pursuant to 22 U.S. C. §9003(b), on the ground that Italy
was her habitual residence.
The District Court granted Taglieri’s petition after a four-
day bench trial. Sixth Circuit precedent at the time, the
District Court observed, instructed courts that a child ha-
bitually resides where the child has become “acclimatiz[ed]”
to her surroundings. App. to Pet. for Cert. 85a (quoting
Robert v. Tesson, 507 F.3d 981, 993 (CA6 2007)). An infant,
however, is “too young” to acclimate to her surroundings.
App. to Pet. for Cert. 87a. The District Court therefore pro-
ceeded on the assumption that “the shared intent of the
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Opinion of the Court
[parents] is relevant in determining the habitual residence
of an infant,” though “particular facts and circumstances
. . . might necessitate the consideration [of] other factors.”
Id., at 97a. The shared intention of A. M. T.’s parents, the
District Court found, was for their daughter to live in Italy,
where the parents had established a marital home “with no
definitive plan to return to the United States.” Ibid. Even
if Monasky could change A. M. T.’s habitual residence uni-
laterally by making plans to raise A. M. T. away from Italy,
the District Court added, the evidence on that score indi-
cated that, until the day she fled her husband, Monasky
had “no definitive plans” to raise A. M. T. in the United
States. Id., at 98a. In line with its findings, the District
Court ordered A. M. T.’s prompt return to Italy.
The Sixth Circuit and this Court denied Monasky’s re-
quests for a stay of the return order pending appeal. 907
F.3d, at 407. In December 2016, A. M. T., nearly two years
old, was returned to Italy and placed in her father’s care.1
In the United States, Monasky’s appeal of the District
Court’s return order proceeded. See Chafin v. Chafin, 568
U.S. 165, 180 (2013) (the return of a child under the Hague
Convention does not moot an appeal of the return order). A
divided three-judge panel of the Sixth Circuit affirmed the
District Court’s order, and a divided en banc court adhered
to that disposition.
The en banc majority noted first that, after the District
Court’s decision, a precedential Sixth Circuit opinion, Ah-
med v. Ahmed, 867 F.3d 682 (2017), established that, as
the District Court had assumed, an infant’s habitual resi-
dence depends on “shared parental intent.” 907 F. 3d, at
——————
1 Taglieri represents that “[a]n order issued by the Italian court in De-
cember 2018 awarded legal custody of A. M. T., on an interim basis, to
the Lugo municipality . . . with placement at [Taglieri’s] residence; and
provided that mother-daughter visits would continue under the plan pre-
scribed in a court order issued earlier in 2018.” Brief for Respondent 56,
n. 13.
6 MONASKY v. TAGLIERI
Opinion of the Court
408 (quoting Ahmed, 867 F.3d, at 690). The en banc ma-
jority then reviewed the District Court’s habitual-residence
determination for clear error and found none. Sustaining
the District Court’s determination that A. M. T.’s habitual
residence was Italy, the majority rejected Monasky’s argu-
ment that the District Court erred because “she and Ta-
glieri never had a ‘meeting of the minds’ about their child’s
future home.” 907 F.3d, at 410.
No member of the en banc court disagreed with the ma-
jority’s rejection of Monasky’s proposed actual-agreement
requirement. Nor did any judge maintain that Italy was
not A. M. T.’s habitual residence. Judge Boggs wrote a con-
curring opinion adhering to the reasoning of his three-judge
panel majority opinion: “[A]bsent unusual circumstances,
where a child has resided exclusively in a single country,
especially with both parents, that country is the child’s ha-
bitual residence.” Id., at 411. The dissenters urged two
discrete objections. Some would have reviewed the District
Court’s habitual-residence determination de novo. See id.,
at 419 (opinion of Moore, J.). All would have remanded for
the District Court to reconsider A. M. T.’s habitual resi-
dence in light of the Sixth Circuit’s Ahmed precedent. See
907 F.3d, at 419–420; id., at 421–422 (opinion of Gibbons,
J.); id., at 423 (opinion of Stranch, J.).
We granted certiorari to clarify the standard for habitual
residence, an important question of federal and interna-
tional law, in view of differences in emphasis among the
Courts of Appeals. 587 U. S. ___ (2019). Compare, e.g., 907
F.3d, at 407 (case below) (describing inquiry into the child’s
acclimatization as the “primary” approach), with, e.g.,
Mozes v. Mozes, 239 F.3d 1067, 1073–1081 (CA9 2001)
(placing greater weight on the shared intentions of the par-
ents), with, e.g., Redmond v. Redmond, 724 F.3d 729, 746
(CA7 2013) (rejecting “rigid rules, formulas, or presump-
tions”). Certiorari was further warranted to resolve a divi-
sion in Courts of Appeals over the appropriate standard of
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
appellate review. Compare, e.g., 907 F.3d, at 408–409 (case
below) (clear error), with, e.g., Mozes, 239 F.3d, at 1073
(de novo).
II
The first question presented concerns the standard for
habitual residence: Is an actual agreement between the
parents on where to raise their child categorically necessary
to establish an infant’s habitual residence? We hold that
the determination of habitual residence does not turn on
the existence of an actual agreement.
A
We begin with “the text of the treaty and the context in
which the written words are used.” Air France v. Saks, 470
U.S. 392, 397 (1985). The Hague Convention does not de-
fine the term “habitual residence.” A child “resides” where
she lives. See Black’s Law Dictionary 1176 (5th ed. 1979).
Her residence in a particular country can be deemed “ha-
bitual,” however, only when her residence there is more
than transitory. “Habitual” implies “[c]ustomary, usual, of
the nature of a habit.” Id., at 640. The Hague Convention’s
text alone does not definitively tell us what makes a child’s
residence sufficiently enduring to be deemed “habitual.” It
surely does not say that habitual residence depends on an
actual agreement between a child’s parents. But the term
“habitual” does suggest a fact-sensitive inquiry, not a cate-
gorical one.
The Convention’s explanatory report confirms what the
Convention’s text suggests. The report informs that habit-
ual residence is a concept “well-established . . . in the
Hague Conference.” 1980 Conférence de La Haye de droit
international privé, Enlèvement d’enfants, E. Pérez-Vera,
8 MONASKY v. TAGLIERI
Opinion of the Court
Explanatory Report in 3 Actes et documents de la Qua-
torzième session, p. 445, ¶66 (1982) (Pérez-Vera).2 The re-
port refers to a child’s habitual residence in fact-focused
terms: “the family and social environment in which [the
child’s] life has developed.” Id., at 428, ¶11. What makes a
child’s residence “habitual” is therefore “some degree of in-
tegration by the child in a social and family environment.”
OL v. PQ, 2017 E. C. R. No. C–111/17, ¶42 (Judgt. of June
8); accord Office of the Children’s Lawyer v. Balev, [2018] 1
S. C. R. 398, 421, ¶43, 424 Dall. L. R. (4th) 391, 410, ¶43
(Can.); A v. A, [2014] A. C., ¶54 (2013) (U. K.). Accordingly,
while Federal Courts of Appeals have diverged, if only in
emphasis, in the standards they use to locate a child’s ha-
bitual residence, see supra, at 6, they share a “common”
understanding: The place where a child is at home, at the
time of removal or retention, ranks as the child’s habitual
residence. Karkkainen v. Kovalchuk, 445 F.3d 280, 291
(CA3 2006).
Because locating a child’s home is a fact-driven inquiry,
courts must be “sensitive to the unique circumstances of the
case and informed by common sense.” Redmond, 724 F.3d,
at 744. For older children capable of acclimating to their
surroundings, courts have long recognized, facts indicating
——————
2 According to an analysis provided by the Department of State to the
Senate during the ratification process, the “explanatory report is recog-
nized by the [Hague] Conference as the official history and commentary
on the Convention and is a source of background on the meaning of the
provisions of the Convention.” Hague International Child Abduction
Convention; Text and Legal Analysis, 51 Fed. Reg. 10503 (1986). The
explanatory report notes, however, that “it has not been approved by the
Conference, and it is possible that, despite the Rapporter’s [sic] efforts to
remain objective, certain passages reflect a viewpoint which is in part
subjective.” Pérez-Vera 427–428, ¶8. See Abbott v. Abbott, 560 U.S. 1,
19 (2010) (“We need not decide whether this Report should be given
greater weight than a scholarly commentary.”).
Cite as: 589 U. S. ____ (2020) 9
Opinion of the Court
acclimatization will be highly relevant.3 Because children,
especially those too young or otherwise unable to acclimate,
depend on their parents as caregivers, the intentions and
circumstances of caregiving parents are relevant consider-
ations. No single fact, however, is dispositive across all
cases. Common sense suggests that some cases will be
straightforward: Where a child has lived in one place with
her family indefinitely, that place is likely to be her habit-
ual residence. But suppose, for instance, that an infant
lived in a country only because a caregiving parent had
been coerced into remaining there. Those circumstances
should figure in the calculus. See Karkkainen, 445 F.3d,
at 291 (“The inquiry into a child’s habitual residence is a
fact-intensive determination that cannot be reduced to a
predetermined formula and necessarily varies with the cir-
cumstances of each case.”).
The treaty’s “negotiation and drafting history” corrobo-
rates that a child’s habitual residence depends on the spe-
cific circumstances of the particular case. Medellín v.
Texas, 552 U.S. 491, 507 (2008) (noting that such history
may aid treaty interpretation). The Convention’s explana-
tory report states that the Hague Conference regarded ha-
bitual residence as “a question of pure fact, differing in that
respect from domicile.” Pérez-Vera 445, ¶66. The Confer-
ence deliberately chose “habitual residence” for its factual
character, making it the foundation for the Convention’s re-
turn remedy in lieu of formal legal concepts like domicile
——————
3 Facts courts have considered include: “a change in geography com-
bined with the passage of an appreciable period of time,” “age of the
child,” “immigration status of child and parent,” “academic activities,”
“social engagements,” “participation in sports programs and excursions,”
“meaningful connections with the people and places in the child’s new
country,” “language proficiency,” and “location of personal belongings.”
Federal Judicial Center, J. Garbolino, The 1980 Hague Convention on
the Civil Aspects of International Child Abduction: A Guide for Judges
67–68 (2d ed. 2015).
10 MONASKY v. TAGLIERI
Opinion of the Court
and nationality. See Anton, The Hague Convention on In-
ternational Child Abduction, 30 Int’l & Comp. L. Q. 537,
544 (1981) (history of the Convention authored by the draft-
ing commission’s chairman). That choice is instructive.
The signatory nations sought to afford courts charged with
determining a child’s habitual residence “maximum flex-
ibility” to respond to the particular circumstances of each
case. P. Beaumont & P. McEleavy, The Hague Convention
on International Child Abduction 89–90 (1999) (Beaumont
& McEleavy). The aim: to ensure that custody is adjudi-
cated in what is presumptively the most appropriate fo-
rum—the country where the child is at home.
Our conclusion that a child’s habitual residence depends
on the particular circumstances of each case is bolstered by
the views of our treaty partners. ICARA expressly recog-
nizes “the need for uniform international interpretation of
the Convention.” 22 U.S. C. §9001(b)(3)(B). See Lozano,
572 U.S., at 13; Abbott, 560 U.S., at 16. The understand-
ing that the opinions of our sister signatories to a treaty are
due “considerable weight,” this Court has said, has “special
force” in Hague Convention cases. Ibid. (quoting El Al Is-
rael Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176
(1999), in turn quoting Air France, 470 U.S., at 404). The
“clear trend” among our treaty partners is to treat the de-
termination of habitual residence as a fact-driven inquiry
into the particular circumstances of the case. Balev, [2018]
1 S. C. R., at 423, ¶50, 424 Dall. L. R. (4th), at 411, ¶50.
Lady Hale wrote for the Supreme Court of the United
Kingdom: A child’s habitual residence “depends on numer-
ous factors . . . with the purposes and intentions of the par-
ents being merely one of the relevant factors. . . . The essen-
tially factual and individual nature of the inquiry should
not be glossed with legal concepts.” A, [2014] A. C., at ¶54.
The Court of Justice of the European Union, the Supreme
Court of Canada, and the High Court of Australia agree.
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Opinion of the Court
See OL, 2017 E. C. R. No. C–111/17, ¶42 (the habitual res-
idence of a child “must be established . . . taking account of
all the circumstances of fact specific to each individual
case”); Balev, [2018] 1 S. C. R., at 421, 423–430, ¶¶43, 48–
71, 424 Dall. L. R. (4th), at 410–417, ¶¶43, 48–71 (adopting an
approach to habitual residence under which “[t]he judge
considers all relevant links and circumstances”); LK v.
Director-General, Dept. of Community Servs., [2009] 237
Cow. L. R. 582, 596, ¶35 (Austl.) (“to seek to identify a set list
of criteria that bear upon where a child is habitually resi-
dent . . . would deny the simple observation that the ques-
tion of habitual residence will fall for decision in a very wide
range of circumstances”). Intermediate appellate courts in
Hong Kong and New Zealand have similarly stated what
“habitual residence” imports. See LCYP v. JEK, [2015] 4
H. K. L. R. D. 798, 809–810, ¶7.7 (H. K.); Punter v. Secre-
tary for Justice, [2007] 1 N. Z. L. R. 40, 71, ¶130 (N. Z.).
Tellingly, Monasky has not identified a single treaty part-
ner that has adopted her actual-agreement proposal. See
Tr. of Oral Arg. 9.4
The bottom line: There are no categorical requirements
for establishing a child’s habitual residence—least of all an
actual-agreement requirement for infants. Monasky’s pro-
——————
4 Monasky disputes that foreign courts apply a totality-of-the-
circumstances standard to infants, as opposed to older children. In this
regard, she points out, the Court of Justice of the European Union in-
structs that, “where ‘the infant is in fact looked after by her mother,’ ‘it
is necessary to assess the mother’s integration in her social and family
environment’ in the relevant country.” Reply Brief 5–6 (quoting Mercredi
v. Chaffe, 2010 E. C. R. I–14309, I–14379, ¶55). True, a caregiving par-
ent’s ties to the country at issue are highly relevant. But the Court of
Justice did not hold that the caregiver’s ties are the end of the inquiry.
Rather, the deciding court must “tak[e] account of all the circumstances
of fact specific to each individual case.” Id., ¶56 (emphasis added) (also
considering, among other factors, the infant’s physical presence and du-
ration of time in the country).
12 MONASKY v. TAGLIERI
Opinion of the Court
posed actual-agreement requirement is not only unsup-
ported 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.” Abbott, 560 U.S., at 20. An actual-
agreement requirement would enable a parent, by with-
holding agreement, unilaterally to block any finding of ha-
bitual residence for an infant. If adopted, the requirement
would undermine the Convention’s aim to stop unilateral
decisions to remove children across international borders.
Moreover, when parents’ relations are acrimonious, as is of-
ten the case in controversies arising under the Convention,
agreement can hardly be expected. In short, as the Court
of Appeals observed below, “Monasky’s approach would cre-
ate a presumption of no habitual residence for infants, leav-
ing the population most vulnerable to abduction the least
protected.” 907 F.3d, at 410.
B
Monasky counters that an actual-agreement requirement
is necessary to ensure “that an infant’s mere physical pres-
ence in a country has a sufficiently settled quality to be
deemed ‘habitual.’ ” Brief for Petitioner 32. An infant’s
“mere physical presence,” we agree, is not a dispositive in-
dicator of an infant’s habitual residence. But a wide range
of facts other than an actual agreement, including facts in-
dicating that the parents have made their home in a partic-
ular place, can enable a trier to determine whether an in-
fant’s residence in that place has the quality of being
“habitual.”
Monasky also argues that a bright-line rule like her pro-
posed actual-agreement requirement would promote
prompt returns of abducted children and deter would-be ab-
ductors from “tak[ing] their chances” in the first place. Id.,
at 35, 38. Adjudicating a winner-takes-all evidentiary dis-
pute over whether an agreement existed, however, is
Cite as: 589 U. S. ____ (2020) 13
Opinion of the Court
scarcely more expeditious than providing courts with lee-
way to make “a quick impression gained on a panoramic
view of the evidence.” Beaumont & McEleavy 103 (internal
quotation marks omitted). When all the circumstances are
in play, would-be abductors should find it more, not less,
difficult to manipulate the reality on the ground, thus im-
peding them from forging “artificial jurisdictional links . . .
with a view to obtaining custody of a child.” Pérez-Vera
428, ¶11.
Finally, Monasky and amici curiae raise a troublesome
matter: An actual-agreement requirement, they say, is nec-
essary to protect children born into domestic violence. Brief
for Petitioner 42–44; Brief for Sanctuary for Families et al.
as Amici Curiae 11–20. Domestic violence poses an “intrac-
table” problem in Hague Convention cases involving care-
giving parents fleeing with their children from abuse. Hale,
Taking Flight—Domestic Violence and Child Abduction, 70
Current Legal Prob. 3, 11 (2017). We doubt, however, that
imposing a categorical actual-agreement requirement is an
appropriate solution, for it would leave many infants with-
out a habitual residence, and therefore outside the Conven-
tion’s domain. See supra, at 11–12. 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 cus-
tody. Domestic violence should be an issue fully explored
in the custody adjudication upon the child’s return.
The Hague Convention, we add, has a mechanism for
guarding children from the harms of domestic violence:
Article 13(b). See Hale, 70 Current Legal Prob., at 10–16
(on Hague Conference working group to develop a best-
practices guide to the interpretation and application of Article
13(b) in cases involving domestic violence). Article 13(b), as
noted supra, at 3, allows a court to refrain from ordering a
child’s return to her habitual residence if “there is a grave
risk that [the child’s] return would expose the child to phys-
ical or psychological harm or otherwise place the child in an
14 MONASKY v. TAGLIERI
Opinion of the Court
intolerable situation.” Art. 13(b), Treaty Doc., at 10.
Monasky raised below an Article 13(b) defense to Taglieri’s
return petition. In response, the District Court credited
Monasky’s “deeply troubl[ing]” allegations of her exposure
to Taglieri’s physical abuse. App. to Pet. for Cert. 105a. But
the District Court found “no evidence” that Taglieri ever
abused A. M. T. or otherwise disregarded her well-being.
Id., at 103a, 105a. That court also followed Circuit prece-
dent disallowing consideration of psychological harm
A. M. T. might experience due to separation from her
mother. Id., at 102a. Monasky does not challenge those
dispositions in this Court.
III
Turning to the second question presented: What is the
appropriate standard of appellate review of an initial adju-
dicator’s habitual-residence determination? Neither the
Convention nor ICARA prescribes modes of appellate re-
view, other than the directive to act “expeditiously.” Art.
11, Treaty Doc., at 9; see Federal Judicial Center, J. Gar-
bolino, The 1980 Hague Convention on the Civil Aspects of
International Child Abduction: A Guide for Judges 162 (2d
ed. 2015) (the Convention’s “emphasis on prompt disposi-
tion applies to appellate proceedings”).5
Absent a treaty or statutory prescription, the appropriate
level of deference to a trial court’s habitual-residence deter-
mination depends on whether that determination resolves
a question of law, a question of fact, or a mixed question of
law and fact. Generally, questions of law are reviewed
——————
5 Monasky contends that only de novo review can satisfy “the need for
uniform international interpretation of the Convention.” 22 U.S. C.
§9001(b)(3)(B). See Brief for Petitioner 19–21. However, ICARA’s recog-
nition of the need for harmonious international interpretation is hardly
akin to the “clear statutory prescription” on the standard of appellate
review that Congress has provided “[f]or some few trial court determina-
tions.” Pierce v. Underwood, 487 U.S. 552, 558 (1988).
Cite as: 589 U. S. ____ (2020) 15
Opinion of the Court
de novo and questions of fact, for clear error, while the ap-
propriate standard of appellate review for a mixed question
“depends . . . on whether answering it entails primarily le-
gal or factual work.” U. S. Bank N. A. v. Village at Lak-
eridge, LLC, 583 U. S. ___, ___–___ (2018) (slip op., at 8–9).
A child’s habitual residence presents what U. S. law
types a “mixed question” of law and fact—albeit barely so.
Id., at ___ (slip op., at 7). The inquiry begins with a legal
question: What is the appropriate standard for habitual res-
idence? Once the trial court correctly identifies the govern-
ing totality-of-the-circumstances standard, however, what
remains for the court to do in applying that standard, as we
explained supra, at 7–11, is to answer a factual question:
Was the child at home in the particular country at issue?
The habitual-residence determination thus presents a task
for factfinding courts, not appellate courts, and should be
judged on appeal by a clear-error review standard deferen-
tial to the factfinding court.
In selecting standards of appellate review, the Court has
also asked whether there is “a long history of appellate
practice” indicating the appropriate standard, for arriving
at the standard from first principles can prove “uncom-
monly difficult.” Pierce v. Underwood, 487 U.S. 552, 558
(1988). Although some Federal Courts of Appeals have re-
viewed habitual-residence determinations de novo, there
has been no uniform, reasoned practice in this regard, noth-
ing resembling “a historical tradition.” Ibid. See also
supra, at 6–7 (noting a Circuit split). Moreover, when a
mixed question has a factual foundation as evident as the
habitual-residence inquiry here does, there is scant cause
to default to historical practice.
Clear-error review has a particular virtue in Hague Con-
vention cases. As a deferential standard of review, clear-
error review speeds up appeals and thus serves the Conven-
tion’s premium on expedition. See Arts. 2, 11, Treaty Doc.,
at 7, 9. Notably, courts of our treaty partners review first-
16 MONASKY v. TAGLIERI
Opinion of the Court
instance habitual-residence determinations deferentially.
See, e.g., Balev, [2018] 1 S. C. R., at 419, ¶38, 424 Dall. L. R.
(4th), at 408, ¶38; Punter, [2007] 1 N. Z. L. R., at 88, ¶204;
AR v. RN, [2015] UKSC 35, ¶18.
IV
Although agreeing with the manner in which the Court
has resolved the two questions presented, the United
States, as an amicus curiae supporting neither party, sug-
gests remanding to the Court of Appeals rather than affirm-
ing that court’s judgment. Brief for United States as Ami-
cus Curiae 28. Ordinarily, we might take that course,
giving the lower courts an opportunity to apply the gov-
erning totality-of-the-circumstances standard in the first
instance.
Under the circumstances of this case, however, we decline
to disturb the judgment below. True, the lower courts
viewed A. M. T.’s situation through the lens of her parents’
shared intentions. But, after a four-day bench trial, the
District Court had before it all the facts relevant to the dis-
pute. Asked at oral argument to identify any additional fact
the District Court did not digest, counsel for the United
States offered none. Tr. of Oral Arg. 38. Monasky and Ta-
glieri agree that their dispute “requires no ‘further factual
development,’ ” and neither party asks for a remand. Reply
Brief 22 (quoting Brief for Respondent 54).
Monasky does urge the Court to reverse if it rests
A. M. T.’s habitual residence on all relevant circumstances.
She points to her “absence of settled ties to Italy” and the
“unsettled and unstable conditions in which A. M. T. re-
sided in Italy.” Reply Brief 19 (internal quotation marks
and alteration omitted). The District Court considered the
competing facts bearing on those assertions, however, in-
cluding the fraught circumstances in which the parties’
marriage unraveled. That court nevertheless found that
Monasky had sufficient ties to Italy such that “[a]rguably,
Cite as: 589 U. S. ____ (2020) 17
Opinion of the Court
[she] was a habitual resident of Italy.” App. to Pet. for Cert.
91a. And, despite the rocky state of the marriage, the Dis-
trict Court found beyond question that A. M. T. was born
into “a marital home in Italy,” one that her parents estab-
lished “with no definitive plan to return to the United
States.” Id., at 97a. Nothing in the record suggests that
the District Court would appraise the facts differently on
remand.
A remand would consume time when swift resolution is
the Convention’s objective. The instant return-order pro-
ceedings began a few months after A. M. T.’s birth. She is
now five years old. The more than four-and-a-half-year du-
ration of this litigation dwarfs the six-week target time for
resolving a return-order petition. See Art. 11, Treaty Doc.,
at 9. Taglieri represents that custody of A. M. T. has so far
been resolved only “on an interim basis,” Brief for Respond-
ent 56, n. 13, and that custody proceedings, including the
matter of Monasky’s parental rights, remain pending in It-
aly. Tr. of Oral Arg. 60–61. Given the exhaustive record
before the District Court, the absence of any reason to an-
ticipate that the District Court’s judgment would change on
a remand that neither party seeks, and the protraction of
proceedings thus far, final judgment on A. M. T.’s return is
in order.
* * *
For the reasons stated, the judgment of the Court of Ap-
peals for the Sixth Circuit is
Affirmed.
Cite as: 589 U. S. ____ (2020) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–935
_________________
MICHELLE MONASKY, PETITIONER v.
DOMENICO TAGLIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[February 25, 2020]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
The Court correctly concludes that an actual agreement
between parents is not necessary to establish the habitual
residence of an infant who is too young to acclimatize.* I
also agree with the Court’s conclusion that the habitual-
residence inquiry is intensely fact driven, requiring courts
to take account of the unique circumstances of each case. I
write separately, however, because I would decide this case
principally on the plain meaning of the treaty’s text.
I
This case requires us to interpret the Hague Convention
on the Civil Aspects of International Child Abduction, Oct.
25, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11, as
implemented by the International Child Abduction Reme-
dies Act (ICARA), as amended, 22 U.S. C. §9001 et seq. Ar-
ticle 3 of the Convention provides that the “removal or the
retention of a child is to be considered wrongful” when “it is
——————
* The Court states that we “granted certiorari to clarify the standard
for habitual residence,” ante, at 6, and the opinion contains language that
may be read to apply to older children, see, e.g., ante, at 8–9. But the
relevant question presented focuses exclusively on the habitual residence
of “an infant [who] is too young to acclimate to her surroundings.” Pet.
for Cert. i. I would confine our analysis to that distinct question, which
is the only one briefed by the parties.
2 MONASKY v. TAGLIERI
Opinion of THOMAS, J.
in breach of rights of custody attributed to a person . . . un-
der the law of the State in which the child was habitually
resident immediately before the removal or retention” and
“at the time of removal or retention those rights were actu-
ally exercised.” S. Treaty Doc. No. 99–11, at 7. Under
ICARA, a parent may petition a federal or state court to re-
turn an abducted child to the child’s country of habitual res-
idence. §9003(b). ICARA does not define habitual resi-
dence; it merely states that the petitioning parent must
“establish by a preponderance of the evidence . . . that the
child has been wrongfully removed or retained within the
meaning of the Convention.” §9003(e)(1)(A). The Conven-
tion also does not define the phrase.
“ ‘The interpretation of a treaty, like the interpretation of
a statute, begins with its text.’ ” Abbott v. Abbott, 560 U.S.
1, 10 (2010) (quoting Medellín v. Texas, 552 U.S. 491, 506
(2008)). The Court recognizes this fact, but it concludes
that the text only “suggests” that habitual residence is a
fact-driven inquiry, and ultimately relies on atextual
sources to “confir[m] what the Convention’s text suggests.”
Ante, at 7. In my view, the ordinary meaning of the relevant
language at the time of the treaty’s enactment provides
strong evidence that the habitual-residence inquiry is in-
herently fact driven. See Schindler Elevator Corp. v.
United States ex rel. Kirk, 563 U.S. 401, 407 (2011).
In 1980, as today, “habitual” referred to something that
was “[c]ustomary” or “usual.” Black’s Law Dictionary 640
(5th ed. 1979); see also 6 Oxford English Dictionary 996 (2d
ed. 1989) (“existing as a settled practice or condition; con-
stantly repeated or continued; customary”); Webster’s
Third New International Dictionary 1017 (1976) (similar).
And “residence” referred to a “[p]ersonal presence at some
place of abode,” Black’s Law Dictionary, at 1176, “one’s
usual dwelling-place,” 13 Oxford English Dictionary, at
707, or “the act or fact of abiding or dwelling in a place for
some time,” Webster’s Third New International Dictionary,
Cite as: 589 U. S. ____ (2020) 3
Opinion of THOMAS, J.
at 1931; see also ibid. (“a temporary or permanent dwelling
place, abode, or habitation”).
These definitions demonstrate that the concept of habit-
ual residence for a child too young to acclimatize cannot be
reduced to a neat set of necessary and sufficient conditions.
Answering the question of what is customary or usual, for
instance, requires judges to consider a host of facts, such as
the presence or absence of bank accounts and driver’s li-
censes, the length and type of employment, and the
strength and duration of other community ties. Determin-
ing whether there is a residence involves the consideration
of factors such as the presence or absence of a permanent
home, the duration in the country at issue, and, in some
cases, an actual agreement between the parents to reside in
a particular place. Accordingly, the ordinary meaning of
the phrase “habitual residence” provides strong support for
the conclusion that an objective agreement between the
child’s parents is not required. This plain meaning should
serve as the primary guide for our interpretation. See Wa-
ter Splash, Inc. v. Menon, 581 U. S. ___, ___ (2017) (slip op.,
at 4); Olympic Airways v. Husain, 540 U.S. 644, 649 (2004).
II
This case exemplifies the wisdom of firmly anchoring our
discussion in the text before turning to the decisions of sis-
ter signatories—especially when those decisions are not
contemporaneous with the treaty’s passage. Here, the
Court finds it meaningful that foreign courts have inter-
preted the phrase “habitual residence” as a fact-driven in-
quiry. Ante, at 10–11. Though a “ ‘clear trend’ ” has cer-
tainly emerged in foreign courts, ante, at 10, this consensus
appears to have developed only within the past decade.
Lady Hale of the Supreme Court of the United Kingdom
noted as much in the 2013 decision cited by the Court. As
she explained, for many years “the English courts [had]
4 MONASKY v. TAGLIERI
Opinion of THOMAS, J.
been tempted to overlay the factual concept of habitual res-
idence with legal constructs,” creating legal rules that dic-
tated a child’s habitual residence. A v. A, [2014] A. C. ¶39
(2013) (U. K.); see also id., ¶37. According to one commen-
tator writing in 2001, though “academics and judges” had
stressed “that the term should not be treated as a term of
art and should not be complicated by technical legal re-
quirements similar to those applicable to the concept of
domicile,” “in some cases these statements seem[ed] to have
been pure lip-service, since many courts [were] unable to
resist the temptation to ‘legalise’ the concept.” Schuz, Ha-
bitual Residence of Children Under the Hague Child Ab-
duction Convention—Theory and Practice, 13 Child & Fam-
ily L. Q. 1, 4 (2001). Thus, until recently, “[t]he approach of
many [foreign] courts [had] been to focus exclusively on the
purpose of the parents in relocating,” an inquiry that
speaks to the legal concept of domicile. Schuz, Policy Con-
siderations in Determining the Habitual Residence of a
Child and the Relevance Of Context, 11 J. Transnat’l L. &
Pol’y 101, 103 (2001) (footnote omitted).
It seems, then, that it took approximately 30 years from
the time of the Convention’s enactment in 1980 for foreign
jurisdictions to coalesce around an interpretation of habit-
ual residence. This relatively recent evolution brings into
bold relief the risk of relying too heavily on the decisions of
foreign courts in lieu of a fulsome textual analysis. Because
the decisions are not contemporaneous with the treaty’s
passage, they do not necessarily provide the best evidence
of the original understanding of the phrase. And reflexively
looking to foreign courts raises the question whether this
Court would have resolved this case differently had the is-
sue been presented in 1990, 2000, or even 2010, before the
clear trend emerged.
The Court attempts to sidestep this difficulty by pointing
to a statement in ICARA’s preamble that stresses “the need
for uniform international interpretation of the Convention.”
Cite as: 589 U. S. ____ (2020) 5
Opinion of THOMAS, J.
22 U.S. C. §9001(b)(3)(B); see ante, at 10. It should go with-
out saying that if our independent assessment of habitual
residence led to a conclusion that diverged from the emerg-
ing consensus, invocation of this prefatory language to force
agreement at the expense of plain meaning would be un-
founded. By relying too heavily on the judicial decisions of
the treaty’s other signatories, rather than on a more thor-
ough textual analysis, we risk being persuaded to reach the
popular answer, but perhaps not the correct one. In short,
“we should not substitute the judgment of other courts for
our own.” Abbott, 560 U.S., at 43 (Stevens, J., dissenting);
see also Olympic Airways, 540 U.S., at 655, n. 9.
To avoid these potential pitfalls, I would rely on the plain
meaning of “habitual residence” to conclude that an actual
agreement is not necessary. See supra, at 2–3. That con-
clusion is bolstered by the Convention’s explanatory report.
Interpretations from the courts of sister signatories, though
recent, also support the conclusion because they align with
the meaning of the text and our own independent judgment.
Because the Court places insufficient weight on the treaty’s
text, I cannot join Part II of its opinion.
Cite as: 589 U. S. ____ (2019) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–935
_________________
MICHELLE MONASKY, PETITIONER v.
DOMENICO TAGLIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[February 25, 2020]
JUSTICE ALITO, concurring in part and concurring in the
judgment.
I agree with the Court on almost all the issues in this
case. Specifically, I agree (1) that analysis of the question
of “habitual residence” should be based on a range of factors
and should be attentive to the particular facts of each case,
(2) that a child may have a habitual residence in a country
without a parental agreement to that effect, (3) that our in-
terpretation of habitual residence should take into account
the interpretations of other signatory nations, (4) that a dis-
trict court’s decision on habitual residence is entitled to def-
erence on appeal, and (5) that the judgment below should
be affirmed. I also agree with JUSTICE THOMAS that we
must independently interpret the meaning of “habitual
residence.”
So what does it mean? The term “habitual” is used to
refer to a cluster of related concepts. It can be used to refer
to things done by habit, as well as things that are “con-
stantly repeated or continued,” “usual,” or “accustomed.” 6
Oxford English Dictionary 996 (2d ed. 1989); see also Web-
ster’s Third New International Dictionary 1017 (1976). If
taken in isolation, each of these understandings might lead
to a different analysis in applying the concept of “habitual
residence” under the Convention. See Hague Convention
on the Civil Aspects of International Child Abduction, Oct.
2 MONASKY v. TAGLIERI
Opinion of ALITO, J.
25, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11.
But I think the Court accurately captures what the term
means under the Convention when it says that a child’s ha-
bitual residence is the child’s “home.” Ante, at 8, 10, 15.
Of course the concept of “home” is also multifaceted. It
can be used to signify the place where a person generally
sleeps, eats, works, and engages in social and recreational
activities, but it can also mean the place where a person
feels most comfortable and the place to which the person
has the strongest emotional ties. See 7 Oxford English Dic-
tionary, at 322–323; Webster’s Third New International
Dictionary, at 1082. As best I can determine, the concept of
“habitual residence” under the Convention embraces all of
these meanings to some degree. If forced to try to synthe-
size them, I would say it means the place where the child in
fact has been living for an extended period—unless that
place was never regarded as more than temporary or there
is another place to which the child has a strong attachment.
I think this is the core of what courts have made of the con-
cept of “habitual residence,” and it appears to represent the
best distillation of the various shades of meaning of the
term taken in context.
So interpreted, “habitual residence” is not a pure ques-
tion of fact, at least as we understand that concept in our
legal system. But it does involve a heavily factual inquiry.
For these reasons, I would say that the standard of review
on appeal is abuse of discretion, not clear error. As a prac-
tical matter, the difference may be no more than minimal.
The important point is that great deference should be af-
forded to the District Court’s determination.