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Monasky v. Taglieri (U.S. Sup. Ct.)

Published online by Cambridge University Press:  28 September 2020

Linda Silberman
Linda Silberman*
Affiliation:
Linda Silberman is the Clarence D. Ashley Professor of Law at New York University School of Law and author of ‘Cooperative Efforts in Private International Law on Behalf of Children: The Hague Children's Conventions’, 23 Recueil des cours 265 (2006).
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Extract

The Supreme Court of the United States has decided four cases under the 1980 Hague Convention on the Civil Aspects of the International Child Abduction (hereinafter the Hague Convention), the most recent one coming this term in Monasky v. Taglieri. The Hague Convention, adopted in 101 countries, requires the judicial or administrative authority of a country that is party to the Convention to return a child who has been wrongfully removed or retained to the country of the child's habitual residence.The Convention also provides for a limited number of defenses to return. The obligation of return is a “provisional” remedy, in that the merits of any custody dispute will be determined by a court in the country of habitual residence. One of the most critical aspects of the Convention is this concept of “habitual residence,” which was the issue presented to the Court in Monasky.

Type
International Legal Documents
Information
International Legal Materials , Volume 59 , Issue 5 , October 2020 , pp. 873 - 887
Copyright
Copyright © American Society of International Law 2020

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References

ENDNOTES

1 Hague Conve ntion on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, 19 ILM 1501. The Convention was ratified by the United States in 1988.

2 140 S.Ct. 719 (2020) [hereinafter Monasky]. The other three cases were Abbott v. Abbott, 506 U.S. 1 (2020), Chafin v. Chafin, 568 U.S. 165 (2013), and Lozano v. Montoya Alvarez, 572 U.S. 1 (2014).

3 Article 12 provides: “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal, or retention, the authority concerned shall order the return of the child forthwith.”

4 See Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1054 (2005).

5 Article 3 provides that “[t]he removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention …”

6 Taglieri v. Monasky, 2016 U.S. Dist. LEXIS 195225 (N.D. Ohio 2016).

7 876 F.3d 868 (6th Cir. 2017).

8 Judge Boggs distinguished the recent decision in Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), which adopted the “parental intent” standard for young children, as a case where the children had alternating residences.

9 Id. at 877, quoting Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis 203 (2013).

10 Id. at 884.

11 907 F.3d 404 (6th Cir. 2018) (en banc).

12 Monasky, supra note 2.

13 Id. at 723.

14 Id. at 726.

15 Id. at 728.

16 Id. at 729.

17 Id. at 730.

18 Id. at 732–33.

19 Id. at 735.