Justices Struggle With International Child Custody

custody battle. The residence of a child is key in determining what countries law governs custody under the Hague Convention. So how should courts determine the habitual residence of a child in the middle of a custody battle. Here are Justices Stephen Bryer and Samuel Alito and Chief Justice John Roberts questioning the standard during oral arguments, and as soon as nine people who know free speaking for myself, know very little about this start laying down black letters standards.

All we're gonna do is maybe help people in some cases and just cause chaos and hardship in others. So either parent at that time could snatch her and possession would be ten tenths of the law right, it should have a meaningless concept where the child usually lives. If you're talking about somebody's eight weeks old, again, it's not as if they've laid down roots. That's year. Eight week old infants don't have habits. Well other than one or two joining me is Steve Sanders, a professor at Indiana

University's Moral School of Law. Steve some complicated international law issues here. Tell us about the key issue. Well, the United States is a signatory to something called the Hate Convention on the Civil Aspects of International Child Abduction. And the Hate Convention requires that when a child is wrongfully removed from a particular country, a court has to determine what is the child's quote unquote habitual country of residents,

so that at country's courts can make the child custody determination. So, in this case, because a treaty that the United States has signed becomes part of federal law, the U. S. Courts now that ultimately the Supreme Court need to decide what does it mean to determine the habitual residence of a child when that child is an infant and they have been removed from their country of birth. So the standard that U. S. Courts use when there's child custody

is best interests of the child. Normally, that doesn't apply at all in these international cases. No, it doesn't, because actually, even in US domestic law there is a parallel principle. The best interest of the child standard is used when basically you have two different parents who are fit and

accord needs to decide between the two of them. But there is also law in the United States that is intended to discourage a parent from essentially kidnapping the child and taking them to another state when they get a child custody determination that they don't like, and the Hate

Convention essentially mirrors that principle on the international level. It's intended to attack the potential problem of a parent abducting their own child and taking that child to a different country because back in the first country a child custody determination went against the parent, and so they want to try their hand at getting a different jurisdiction to render a different child custody determination. Before we get to the Supreme Court, arguments, tell us what happened below with the

district court and the circuit court levels. Sure, well, this case involves a couple of U. S citizen Michellemneski and an Italian citizen, Domenico Taglieri. They were married in the United States and then moved to Italy and had a child. In Italy, Michelle claims that Domenico was abusive and that she was fleeing domestic violence, and she ultimately returned to

the United States with the child. Domenico's attorneys filed a case in federal court, saying that the child had been wrongfully removed from Italy, that Italy should be considered the child's quote unquote habitual residence. The United States courts, a federal district court and then the Sixth Circuit Court of Appeals, which covers Ohio, which is where Michelle is both ruled that in this case the child had to be returned to Italy under the Hade convention that Italy had been

the child's habitual residence. So what was the mother's argument of the Supreme Court? So first, I think no one disputes the principle that in general, once again, you don't want to incentivize parents who get an unfavorable custody determination to abduct their own child and take them to another jurisdiction. But in this case, the mother is saying, this is

a different situation. I was fleeing domestic violence. The child is potentially at risk in Italy, and so that standard of what is a bitual residence of the child needs to make some accommodation, needs to recognize the possibility that even if, in this case, say Italy was the child's appropriate residence, there may be cases when the child for

its own safety needs to be taken elsewhere. Although her attorneys are also saying that because the child was only eight weeks old and because the parents had not come to some kind of agreement about where the child would be raised in this situation, the mother's attorneys argue the child essentially could not be said to have even had a habitual country of residents, and so there was nothing wrong with the child being taken to the United States.

So what were the concerns of the justices? I think that the justices are searching for a clear standard, They're searching for a rule. This isn't a case where there was a circuit split that the court had to resolve, but it's an important question of federal law, and an international treaty is involved, and you can imagine him that

in this very mobile age. This is going to come up when children and parents cross international boundaries, and so I think the Court was primarily concerned to have some sort of role that it can apply, that lower courts can apply in these sorts of situations, so that it doesn't just become a determination of which parent presents the more sympathetic case. I think commentators who watched the oral arguments in this case believe the court maybe leaning towards

the father's side. That is the argument that the child needs to be in Italy, that that is where the courts should make a child custody determination. But it's not necessarily completely clear from the oral arguments how the court may rule in this case. So Justice Samuel Alito seems skeptical of the mother's arguments. He said, under that position, either parent could snatch her possession would be tense of

the law. Well, exactly. Again, I think that just simply gets back to the principle that the whole point of this Hague Convention, just as the point of federal law that governs this kind of situation among states in the United States, is that we don't want parents engaging and kidnapping. We don't want a parent to be able to say, because I now have physical control of the child, that child's custody should be determined by whatever state or whatever

country I end up in. There is supposed to be a standard for determining which country that is in order to deter this kind of child snatching, which is what the father says was involved. It seemed that Justice Ruth Bader Ginsburg was concerned about the mother's allegations of abuse.

Were any of the other justices. Well, the Hague Convention actually does have essentially a provision, or you might think of it as a loophole that says, um, you know, this habitual country of residence standard may not necessarily apply in a situation where proof has been presented that the child would be in a potentially dangerous situation. The lower federal courts in this case actually found that the mother had not met her burden to invoke that particular exit

or that particular loophole from the Hague Convention. The mother has said that she was the victim of domestic abuse, but the lower court said she had not met her burden to show that the child would be in danger.

In fact, the child has been in Italy during the pendency of this litigation for some four years now, because the lower federal court decisions required the child to be returned to Italy pending the outcome of this litigation, and there was nothing presented at the oral argument that indicated that during this time that the child has lived with its father, that the child has been abused or endangered. Did Justice Elena Kagan come up with a theory that

had been used by the Six Circuit. But Justice Kagan basically said that courts would normally presume that a baby's habitual residence would be the country in which she has lived, in which case that would be Italy. The mother's attorneys pushed back on that idea, I think, because again they thought, that doesn't leave room for the possibility that there may be reasons why the parents didn't intend to raise the child in that country, or extenuating circumstances that would require

the child to be removed from that country. Accord in some senses looking for a rule that makes sense and can be administered by lower courts, but yet is not a rule that is not insensitive to the particular circumstances of particular cases. So can there be some kind of a midway position? For the court or are they going to have to, you know, just come down with a rule and leave it at that. I mean, is there any kind of gray area here where they could rule in this case but not make a blank at rule.

One thing the court could do is to send is to remand the case back to the federal courts in Ohio and tell them to apply a different standard. Um. Uh. The mother's attorneys are arguing that these sorts of determinations should be reviewed by by appellate courts donovo, rather than giving deference to the district courts factual determinations. Um. The Court will probably reject that idea, because where a child's country of habitual residence is really is a fact question?

Is a factual determination? Um? The Court often surprises us, but I think the Court probably would not have taken this case if it didn't feel an obligation to provide some clarity, some administrable rule for lower courts to follow going forward in cases like this. Finally, does this come up often because you have a Supreme Court taking this case? Is this an issue that comes up often international child

custody disputes? Well, again, you know, if if you look around the web, there are law firms that specialize in helping parents with these sorts of situations. I don't know that um, there are any statistics about how often this kind of thing happens. But once again, this case involved a US citizen marrying an Italian citizen, and they get

married here, then they moved to Italy. You can imagine in the world today that is not an uncommon situation that parents, because of career interests and educational interests and family interests, move around not just from state to state, but from country to country. And so UM, just as there are plenty of child custody interstate battles in the United States, you know, one can imagine that's not unusual

that this kind of thing happens. And and again I think the court a circuit split was not an issue here, But that's not the only way to get the court's attention. When there's a significant question of federal law that the court believes is not just an unusual circumstance but may come up again in the future often enough to require

a rule, then the court will take it. And so I think we have to assume the court thinks that this is something that UM is a live issue that potentially uh courts in the United States will confront on a regular basis. Thanks Steve. That's Steve Sanders, a professor at Indiana University's Morris School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg

dot com slash podcast. I'm June Brasso. This is Bloomberg