Monasky v. Taglieri

(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

Cite as: 589 U. S. ____ (2020) 3

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

Cite as: 589 U. S. ____ (2020) 5

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 D. 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 D. 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 D. 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

C. 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 D. 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.