The Hague Convention requires that a child wrongfully removed from her country of “habitual residence” must be returned to that country. In Monasky v. Taglieri, an infant was born in Italy to an American mother and Italian father. The relationship was abusive, and the mother soon relocated to America, taking the child with her. The father moved to have the child returned to Italy under the Convention. The district court granted relief to the father, holding that the child was too young to have acclimatized to Italy, but should go back anyway because the parents had no plans to raise the child in America. The Sixth Circuit affirmed, and the Court, in a unanimous opinion by Justice Ginsburg, affirmed again. The Court first held that the term “habitual residence” of an infant did not require evidence of an agreement between the parents on where to raise the child, but rather on the particular circumstances of each case. The Court then established that determinations by trial courts on that issue would be entitled to review for “clear error,” since a finding of “habitual residence” was a mixed question of law and fact. Justice Thomas filed a concurrence agreeing with the result, but stating that the plain language of the Convention was enough to resolve this case. Justice Alito also filed a concurrence to note that he thought the proper standard of review would be for abuse of discretion, given his view that the inquiry was more of a fact finding one.
A link to the opinion is here.