The most common form of kidnapping is when a child is taken by a parent from a co-parent. When the kidnapping parent is native to another country, navigating the international family courts can be more than challenging. Because of this, the Hague Convention on the Civil Aspects of International Child Abduction created an order that all signatory countries must return an abducted child to their location of habitual residency. However, the Hague Convention declined to define what habitual residency meant, leaving it up to the determination of the Courts. Recently, the U.S. Supreme Court confronted this issue in the landmark case of Monasky v. Taglieri. Based on precedent from other countries and the drafter's intent of the international agreement, habitual residency is based on a factual inquiry as to where the child is “more than just transitory and it is customary, usual, and of the nature of a habit.” This decision does not encompass the many challenges that are faced with international familial relationships. Particularly the Court failed to fully consider instances of domestic violence and how this decision forces many families to be returned to their abusers. This note will focus on this decision and its impact on the hundreds of thousands of families attempting to recover a wrongly taken child across international borders and the parents who flee from unsafe circumstances with their children. The first section will discuss the legal background of the Hague Convention and its previous interpretation in the U.S. courts, leading up to the decision in Monasky. The second section will discuss the holding in Monasky and how the Supreme Court arrived at this decision. Next, it will discuss the Court's reasoning for this decision. Finally, the fourth section will discuss the impact of this decision on international custody issues and how this will affect children who are victims of international child abduction and the parents that are fighting international custodial disputes.
Monasky V. Taglieri: The Supreme Court’s Interpretation of Habitual Residency and Its Impact on International Child Abduction,
Loy. U. Chi. Int'l L. Rev.
Available at: https://lawecommons.luc.edu/lucilr/vol18/iss1/5