Amicus Curiae Brief — Michelle Monasky, Petitioner v. Domenico Taglieri

No. 18-935

In the Supreme Court of the United States

MICHELLE MONASKY, PETITIONER,

v.

DOMENICO TAGLIERI

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF SANCTUARY FOR FAMILIES,

NATIONAL NETWORK TO END DOMESTIC VIOLENCE,

PATHWAYS TO SAFETY INTERNATIONAL, AND

LEGAL MOMENTUM AS AMICI CURIAE

IN SUPPORT OF PETITIONER

MICHAEL A.F. JOHNSON

Counsel of Record

DIRK C. PHILLIPS

KATELYN A. HORNE

AVISHAI D. DON

SHIRA V. ANDERSON

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

michael.johnson@arnoldporter.com

TABLE OF CONTENTS

Page

Interest of Amici Curiae .................................................... 1

Summary of the Argument ................................................. 1

Argument .............................................................................. 3

I. Hague Convention Cases Now Commonly

Involve Caretaker Parents Fleeing Abusive

Partners ......................................................................... 3

A. The Changing Nature of Child Removal ............. 3

B. The Convention’s Purpose of Protecting

Children is Often Best Served by Not

Returning Them to the Countries from Which

They Were Taken ................................................... 7

II. The “Actual Agreement” Standard for

“Habitual Residence” Best Ensures That

Children Will Not Be Returned to Abusers ............ 11

A. The Term “Habitual Residence,” Like the

Hague Convention as a Whole, Must Be

Interpreted in Light of the Best Interests of

the Child ................................................................ 11

B. An “Actual Agreement” Standard For

“Habitual Residence” Places the Proper

Amount of Emphasis on the Subjective

Mental State of the Fleeing Parent .................... 12

C. The “Actual Agreement” Standard Provides

American Courts With Greater Discretion to

Make Repatriation Decisions. ............................. 14

D. The “Actual Agreement” Standard Is In Line

With International Consensus ............................ 15

E. The Convention’s “Grave Risk” Exception Is

Not Sufficient to Prevent the Return of

Children to Abusive Parents ............................... 16

Conclusion ........................................................................... 20

(I)

TABLE OF AUTHORITIES

U.S. Cases

Page(s)

Abbott v. Abbott,

560 U.S. 1 (2010) .................................................... 8, 16, 17

Bacardi Corp. of America v. Domenech,

311 U.S. 150 (1940) .......................................................... 12

Baxter v. Baxter,

423 F.3d 363 (3d Cir. 2005) ............................................ 17

Belay v. Getachew,

272 F. Supp. 2d 553 (D. Md. 2003) .......................... 17, 19

Dalmasso v. Dalmasso,

269 Kan. 752, 9 P.3d 551 (2000) ..................................... 20

In re A.L.C.,

607 F. App’x 658, 662 (9th Cir. 2015) ............................ 15

Janakakis-Kostun v. Janakakis,

6 S.W.3d 843 (Ky. Ct. App. 1999) .................................. 20

March v. Levine,

136 F. Supp. 2d 831 (M.D. Tenn. 2000) ......................... 18

Mauvais v. Herisse,

772 F.3d 6 (1st Cir. 2014) ............................................... 18

McManus v. McManus,

354 F. Supp. 2d 62 (D. Mass. 2005) .............................. 19

Mozes v. Mozes,

239 F.3d 1067 (9th Cir. 2001) ......................................... 11

Pliego v. Hayes,

86 F. Supp. 3d 678 (W.D. Ky. 2015)............................... 19

Soto v. Contreras,

880 F.3d 706 (5th Cir. 2018) ........................................... 17

Souratgar v. Lee,

720 F.3d 96 (2d Cir. 2013) ............................................... 17

Tabacchi v. Harrison,

No. 99 C 4130, 2000 WL 190576 (N.D. Ill.

Feb. 10, 2000) .................................................................. 19

(II)

III

U.S. Cases—Continued

Page(s)

United States v. Stuart,

489 U.S. 353 (1989) .......................................................... 12

International Cases

Dep’t of Family and Cmty. Servs. v. Kayasinghe,

[2018] FamCA 697 (Austl.) ............................................. 16

Kong v. Song, 2018 BCSC 1691 (Can.) ............................. 16

MJB v. CWC,

[2018] HKEC 1741 (C.F.I.) (H.K.) ................................ 16

Re D. (A Child) (Jurisdiction: Habitual

Residence), 2016 EWHC 1689 (Fam)

(U.K.) ................................................................................ 16

Statutes & Treaties

International Child Abduction Remedies Act,

22 U.S.C. § 9001, et seq. .................................................. 11

§ 9001(b)(3)(B) .............................................................. 16

§ 9003(e)(2)(A) .............................................................. 17

Hague Convention on the Civil Aspects of

International Child Abduction, Oct. 25, 1980,

T.I.A.S. No. 11670 ............................................................. 1

Art. 3(a) ......................................................................... 11

Art. 13(b) ....................................................................... 17

Other Authorities

H. Con. Res. 172, 101st Cong. 1990 .................................. 11

H.R. Rep. No. 525, 100th Cong., 2d Session

1988, 1988 U.S.C.C.A.N. 386 .......................................... 16

Deborah K. Anderson & Daniel G. Saunders,

Leaving an Abusive Partner, 4 Trauma,

Violence, & Abuse 163 (2003) .........................................14

IV

Other Authorities—Continued

Page(s)

Carol S. Bruch, The Unmet Needs of Domestic

Violence Victims and Their Children in Hague

Child Abduction Convention Cases, 38 FAM.

L.Q. 529 (2004) ................................................................. 21

Sarah M. Buel, Fifty Obstacles to Leaving,

a.k.a., Why Abuse Victims Stay, 28 The

Colorado Lawyer 19 (1999) ............................................ 13

Geoffrey L. Greif & Rebecca L. Hegar, When

Parents Kidnap: The Families Behind the

Headlines (1992)............................................................. 5

Heather C. Forkey, Children Exposed to Abuse

and Neglect: The Effects of Trauma on the

Body and Brain, 30 J. Am. Acad. Matrimonial

L. 307 (2018) ................................................................. 9, 10

Brenda Hale, Taking Flight—Domestic

Violence and Child Abduction, 70 Current

Legal Problems 1 (2017) ........................................... 3, 7, 9

Hague Conference on Private International Law,

Domestic and Family Violence and the Article

13 “Grave Risk” Exception in the Operation of

the Hague Convention of 25 October 1980 on the

Civil Aspects of International Child Abduction:

A Reflection Paper (Preliminary Document No

9 of May 2011) .................................................................. 11

Hague International Child Abduction

Convention; Text and Legal Analysis, 51 Fed.

Reg. 10503 (1986) .............................................................. 4

Lynn Hecht Schafran, Evaluating the

Evaluators: Problems with “Outside

Neutrals,” 42 The Judges’ Journal 10 (2003) ................. 9

V

Other Authorities—Continued

Page(s)

Roxanne Hoegger, What If She Leaves?

Domestic Violence Cases Under the Hague

Convention and the Insufficiency of the

Undertakings Remedy, 18 Berkeley Women’s

L.J. 181 (2003).................................................................... 5

Miranda Kaye, The Hague Convention and the

Flight from Domestic Violence: How Women

& Children are Being Returned by Coach &

Four, 13 Int’l J.L., Pol’y & Fam. 191 (1999) ............. 6, 13

Carolyn A. Kubitschek, Failure of the Hague

Abduction Convention to Address Domestic

Violence and its Consequences, 9 J. Comp. L.

111 (2014).......................................................................... 10

Taryn Lindhorst & Jeffrey L. Edleson, Battered

Women, Their Children, and Int’l Law 109

(Northeastern Univ. Press 2012)..................................... 9

Lord Chancellor’s Dep’t, Child Abduction Unit,

Report on the Third Meeting of the Special

Commission to Discuss the Operation of the

Hague Convention on the Civil Aspects of

International Child Abduction (1997)............................ 6

Martha R. Mahoney, Legal Images of Battered

Women: Redefining the Issue of Separation,

90 Mich. L. Rev. 1 (1991) .......................................... 13–14

Nigel Lowe & Victoria Stephens, A Statistical

Analysis of Applications Made in 2015 Under

the Hague Convention of 25 October 1980 on

the Civil Aspects of International Child

Abduction – Global Report (2018) ................................... 5

VI

Other Authorities—Continued

Page(s)

Elisa Pérez–Vera 1980 Conference de La Haye

de droit international prive, Enlévement

d’enfants, Elisa Pérez–Vera, Explanatory

Report (“Perez–Vera Report”) in 3 Actes et

Documents de la Quatorziéme Session (1982) .......... 4, 8

Restatement (Third) of Foreign Relations Law

§ 325(1) (1987) .................................................................. 12

Sudha Shetty & Jeffrey L. Edleson, Adult

Domestic Violence in Cases of International

Parental Child Abduction, 11 Violence

Against Women 115 (2005) ............................................... 6

Kyle Simpson, Comment, What Constitutes A

“Grave Risk of Harm?”: Lowering the Hague

Child Abduction Convention’s Article 13(b)

Evidentiary Burden to Protect Domestic

Violence Victims, 24 Geo. Mason L. Rev. 841

(2017) .......................................................................... 3–4, 9

Evan Stark & Anne H. Flitcraft, Women and

Children at Risk: A Feminist Perspective on

Child Abuse, 18 Int’l J. of Health Servs. (1988) ............. 9

Merle H. Weiner, Half-Truths, Mistakes, &

Embarrassments: The United States Goes to the

Fifth Meeting of the Special Commission to

Review the Operation of the Hague Convention

on the Civil Aspects of International Child

Abduction, 1 Utah L. Rev. 221 (2008) ......................... 6–7

Merle H. Weiner, International Child

Abduction and the Escape from Domestic

Violence, 69 Fordham L. Rev. 593 (2000) ....... 3, 8, 13, 18

VII

Other Authorities—Continued

Page(s)

Merle Weiner, The Potential and Challenges of

Transnational Litigation for Feminists

Concerned About Domestic Violence Here and

Abroad, 11 Am. U. J. of Gender, Soc. Pol’y, &

L. 749 (2003) ...................................................................... 6

World Health Org., Understanding and

Addressing Violence Against Women:

Intimate Partner Violence (2012) ................................. 14

INTEREST OF AMICI CURIAE

Amici are non-profit organizations with extensive experience providing services to and advocating for victims

of domestic violence in the United States and abroad.

Based on first-hand experience, amici are able to provide

valuable insight into the impact of the Court’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.

11670 (“Hague Convention”) on parents and children who

are victims of domestic violence.

Amici are concerned that the Sixth Circuit’s decision

will have a lasting detrimental effect on parents and children escaping domestic violence. Amici therefore submit

this brief in support of Petitioner Monasky.1

SUMMARY OF THE ARGUMENT

Determining a child’s “habitual residence” is often

critical in Hague Convention proceedings. Indeed, in

cases like this one, it can determine the outcome, because

the Hague Convention does not require repatriation of

children who have no habitual residence. In practical

terms, a child’s “habitual residence” is usually the place

where the child has become acclimated. But when a child

is too young to have become acclimated to any particular

location, the Circuits unanimously agree that the child’s

“habitual residence” should be determined by “shared parental intent”—that is, the location where the parents intended the child to live.

Amici affirm that no counsel for a party authored this brief

in whole or in part, and that no person other than the amici, its

members, or its counsel made a monetary contribution intended

to fund the brief’s preparation or submission. All parties were

timely notified and consented in writing to the filing of this

brief.

1

(1)

2

The Sixth Circuit claimed that it applied the “shared

parental intent” standard in this case. But it rejected

Monasky’s argument that a “meeting of the minds,” or an

actual agreement,2 between the parents was necessary to

determine shared parental intent. Pet. App. 12a–13a. As

a result, the Sixth Circuit affirmed the District Court’s habitual-residence determination, even though it was undisputed that Monasky “had a fixed subjective intent” to flee

Italy, and had “stated [her] desire to divorce” her abusive

husband “and return to the United States as soon as possible.” Id. at 79a, 92a, 93a, 94a, 97a. The District Court,

as affirmed by the Sixth Circuit, disregarded Monasky’s

subjective intent because—among other things—she had

established a “marital home” in Italy and “acquired items

necessary for [her child] to reside” there. Id. at 93a.

The Sixth Circuit’s holding places victims of domestic

violence at serious risk. Victims will often engage in subtle cognitive, emotional, and behavioral shifts before deciding to flee an abusive partner. These shifts could include, for example, communicating more often with their

family abroad or searching for job postings in their home

country—all while continuing to go to work and take care

of their partner. These sorts of shifts are inherently designed to go unnoticed, because victims do not want to signal their intention to their abusers in the interest of their

safety and that of their children. As a result, such changes

may seem inconsequential to a district judge months (or

years) after the fact. A battered parent’s observable behavior, in other words, does not always reflect actual intention.

The Sixth Circuit characterized this concept as a “subjective

agreement” standard. However, amici describe this concept of

shared intent as “actual agreement,” because it requires an actual—

i.e., realized—meeting of the minds.

2

3

The Sixth Circuit’s rule therefore increases the

chances that parents who flee domestic violence will be required to return children to abusive partners. It is beyond

dispute that domestic violence can impact children—even

if they are not direct recipients of the violence. The Sixth

Circuit’s approach therefore is directly at odds with the

purpose of the Hague Convention, which makes “the interests of children” an issue “of paramount importance in

matters relating to their custody.” Hague Convention,

preamble. This Court should vacate the decision below.

ARGUMENT

I.

Hague Convention Cases Now Commonly Involve

Caretaker Parents Fleeing Abusive Partners

A.

The Changing Nature of Child Removal

The dominant assumption at the time of the drafting

of the Hague Convention was that any removal was harmful to the child, and itself constituted a form of child abuse.

Merle H. Weiner, International Child Abduction and the

Escape from Domestic Violence, 69 Fordham L. Rev. 593,

601–05 (2000). The Hague Convention was therefore

drafted with a paradigmatic case of child removal in mind.

As Lady Hale, President of the Supreme Court of the

United Kingdom, explains, in this paradigm, a disappointed parent loses a custody dispute, and, “upset at the

breakdown of [his] marriage and the loss of easy day to

day contact with [his] children,” takes the children and

flees. Brenda Hale, Taking Flight—Domestic Violence

and Child Abduction, 70 Current Legal Problems 1, 4

(2017). That parent then attempts to “raise a fraudulent

custody claim in the new country of residence,” thereby

attempting “to legalize the abduction.” Kyle Simpson,

Comment, What Constitutes A “Grave Risk of Harm?”:

Lowering the Hague Child Abduction Convention’s Article 13(b) Evidentiary Burden to Protect Domestic Violence Victims, 24 Geo. Mason L. Rev. 841, 847 (2017).

4

A contemporaneous report prepared by Elisa Pérez–

Vera3—considered to be the “official history” of the Convention, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10503

(1986)—emphasizes that the Hague Convention’s goal

was to remedy precisely these sorts of removals. According to the Perez–Vera Report, the specific “situations envisaged” by the Convention’s drafters “are those which

derive from the use of force”—i.e., a noncustodial parent

fleeing with a child to another country—“to establish artificial jurisdictional links on an international level, with a

view to obtaining custody of a child.” Perez–Vera Report,

¶ 11. These sorts of removals inherently harm a child, the

Report insists, because “the child is taken out of the family and social environment in which its life has developed.”

Id. ¶ 12. Thus, “it can firmly be stated that the problem

with which the Convention deals . . . derives all of its legal

importance from the possibility of individuals establishing

legal and jurisdictional links which are more or less artificial.” Id. ¶ 15.

The Hague Convention appears to have largely succeeded in deterring these kinds of removals; as noted below, the overall percentage of these “paradigmatic” abductions has decreased. Unfortunately, the Convention’s

success with respect to these “paradigmatic” abductions

has created serious obstacles for parents fleeing intimate

partner violence.

Today, many parents who remove their children are

fleeing domestic violence.4 Generally, in these cases, “the

1980 Conference de La Haye de droit international prive, Enlévement d’enfants, Elisa Pérez–Vera, Explanatory Report (“Perez–Vera Report”) in 3 Actes et Documents de la Quatorziéme Session (1982).

3

The word “abduction” or “abductor” can carry an unfair connotation of abuse. When the individual absconding with the child is

4

5

abuse begins before the transnational move,” and “the victim flees with her children . . . to escape the abuse.”

Roxanne Hoegger, What If She Leaves? Domestic Violence Cases Under the Hague Convention and the Insufficiency of the Undertakings Remedy, 18 Berkeley

Women’s L.J. 181, 187 (2003). “The batterer, left behind

in the country of habitual residence, then files a petition

under the Hague Convention requesting return of the

children to adjudicate the custody issues.” Id.

The fleeing parent in the vast majority of these cases

is the child’s primary caregiver. According to a statistical

analysis of applications made under the Hague Convention in 2015, “80% of taking persons . . . were the primary

or joint-primary carer of the children involved. This can

be compared with 72% in 2008 and 68% in 2003.” Nigel

Lowe & Victoria Stephens, A Statistical Analysis of

Applications Made in 2015 Under the Hague Convention

of 25 October 1980 on the Civil Aspects of International

Child Abduction – Global Report 8 (2018).

In other words, domestic violence has played an increasing role in Hague Convention cases in recent years.

The incidence of domestic violence in families in which a

child was later removed—over 50 percent—is “unusually

high” compared to the rate of domestic violence in the

general population, which is around 25 percent. Geoffrey

L. Greif & Rebecca L. Hegar, When Parents Kidnap: The

Families Behind the Headlines 30 (1992). Another study

found that approximately one-third of all published and

unpublished U.S. Hague Convention cases mentioned violence within the home. Sudha Shetty & Jeffrey L. Edleson, Adult Domestic Violence in Cases of International

Parental Child Abduction, 11 Violence Against Women

115, 120 (2005); see also Miranda Kaye, The Hague

fleeing abuse, the taking is perhaps more accurately described as a

“removal.” We will accordingly use this term throughout the brief.

6

Convention and the Flight from Domestic Violence: How

Women & Children are Being Returned by Coach &

Four, 13 Int’l J.L., Pol’y & Fam. 191, 193 (1999) (“[I]n at

least half of the instances of parental abduction [in the

United States], violence was a relevant presence in the

parental relationship.”). In fact, “seven of nine [Hague]

Convention cases that reached an appeals court in the last

half of 2000 involved an abducting mother who claimed

she was a victim of domestic violence.” Shetty & Edleson,

supra, at 120 (citing Merle Weiner, The Potential and

Challenges of Transnational Litigation for Feminists

Concerned About Domestic Violence Here and Abroad, 11

Am. U. J. of Gender, Soc. Pol’y, & L. 749 (2003)).

Hague Convention-contracting states have been

carefully tracking this shift. The final report of the Third

Meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention

noted that “the majority of children . . . were taken away

from their country of habitual residence by their mothers,

who not infrequently alleged that they or the children had

suffered hardship and domestic violence at the hands of

the father.” Lord Chancellor’s Dep’t, Child Abduction

Unit, Report on the Third Meeting of the Special Commission to Discuss the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 1 (1997). In a questionnaire preceding the Fifth

Meeting of the Special Commission, “country after country, including the United States, recognized that domestic

violence is frequently raised as an issue by the respondent

in Hague proceedings.” Merle H. Weiner, Half-Truths,

Mistakes, & Embarrassments: The United States Goes to

the Fifth Meeting of the Special Commission to Review

the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 1 Utah L. Rev.

221, 223 n.5 (2008). In discussing domestic violence, participants raised concerns about the way the Convention

7

was “being used by abusive (usually male) parents to seek

the return of children and primary carers . . . and that the

Convention is moving away from what it was meant to deter.” Id. at 282 (citation omitted).

By the Sixth Meeting of the Special Commission in

2011, state participants had begun to consider domestic

violence an important factor in many Hague Convention

cases. See Hale, supra, at 10. The Special Commission

specifically “noted the higher profile and priority now being attached to domestic violence in a number of jurisdictions.” Id. Many contracting states expressed concern

that the operation of the Hague Convention was harming

parents fleeing domestic violence—so much so, in fact,

that “there was a very real risk that some countries would

pull out of the Convention altogether.” Hale, supra, at 11.

Lady Hale, herself a member of a working group created

to tackle the issue of domestic violence, concluded:

There was and remains a very real concern in some

states that their primary carer nationals were being

required to choose between returning with the child

to a situation where they would face a real risk of violence or abuse or refusing to return so that the child

would have to go alone to a new situation. In either

case there was a real risk of harm to the child.

Id.

B. The Convention’s Purpose of Protecting Children

is Often Best Served by Not Returning Them to

the Countries From Which They Were Taken

The Hague Convention was designed to protect “the

best interests of the child.” Perez–Vera Report at ¶ 25;

see also id. at ¶ 24 (explaining that the Hague Convention’s “philosophy” is that the “struggle” to remedy child

removals “must always be inspired by the desire to protect children and should be based upon an interpretation

of their true interests”). The Hague Convention’s goal is

8

not necessarily to reverse every removal, but rather to

remedy the “harms resulting from” a removal. Abbott v.

Abbott, 560 U.S. 1, 21 (2010) (emphasis added). In other

words, protecting a child from danger takes precedence

over returning her to her home country. See Perez-Vera

Report, at ¶ 29. Because a treaty’s text must be interpreted in light of the treaty’s object and purpose, see infra

Sec. II.A, this Court should interpret the phrase “habitual

residence” to best protect children from harm, including

by preventing children from being returned to abusive environments.

The alternative leads to often-devasting consequences. First, a return order in a domestic violence case

will force the fleeing parent (and victim) to make an impossible choice: she can either return with her child,

thereby again placing herself in danger, or she can separate from her child and cause irreparable trauma. Second, and most importantly, a return order will send the

child back to an abusive environment, which is inherently

harmful. In this way, “[t]he remedy of return uniquely

disadvantages” the abused parent, as “it reverses the accomplishment of the victim’s flight by returning the child”

to the abusive environment from which the victim fled.

Weiner, International Child Abduction, supra, at 634.

Returning a child to an abusive environment is seldom, if ever, in her best interests. As an initial matter, the

child may already be, or may become, subject to abuse.

Because domestic violence “is instrumental, directed at

subjugating, controlling and isolating,” when a victim of

domestic violence finally acquires independence from her

abuser, research demonstrates that the batterer can

“turn to abuse and subjugation of the children as a tactic

of . . . control.” Evan Stark & Anne H. Flitcraft, Women

and Children at Risk: A Feminist Perspective on Child

Abuse, 18 Int’l J. of Health Servs. 97–119 (1988) (emphasis

added).

9

Furthermore, it is beyond dispute that it is not in a

child’s best interest to live in an abusive environment,

even when the abuse is not specifically directed at the

child. See Hale, supra, at 7. Children exposed to frequent

domestic violence in the home demonstrate lower cognitive functioning, reduced resilience, and emotional and

mood disorders that are not significantly different from

children who were themselves physically abused. Taryn

Lindhorst & Jeffrey L. Edleson, Battered Women, Their

Children, and Int’l Law 109 (Northeastern Univ. Press

2012). These children “suffer increased physical and psychological illnesses that undermine their health, social

and emotional development, and interpersonal behaviors.” Lynn Hecht Schafran, Evaluating the Evaluators:

Problems with “Outside Neutrals,” 42 The Judges’ Journal 10, 13 (2003). Without adequate response from a caregiver, they may also experience frequent activation of

their physiologic stress response system. Heather C.

Forkey, Children Exposed to Abuse and Neglect: The Effects of Trauma on the Body and Brain, 30 J. Am. Acad.

Matrimonial L. 307, 311 (2018). Such “toxic stress” leads

to “alterations in neurodevelopment, gene translation,

and immune response, resulting in predictable behavioral,

learning, and health issues.” Id.

This analysis applies even if the child does not actually witness the domestic abuse. “Children are intuitive,

and they are aware of and impacted by such abuse when

they witness household tensions or a mother’s emotional

distress.” Simpson, supra, at 857.

Any brief removal of a child from an abusive environment is soon forgotten upon return. Fortunately, many

children who appear to have profound and clinically significant problems can rebound—quickly and dramatically—after experiencing even a relatively short period of

safety and security. Carolyn A. Kubitschek, Failure of

the Hague Abduction Convention to Address Domestic

10

Violence and its Consequences, 9 J. Comp. L. 111, 116

(2014). Such gains, however, are lost if the child is returned to the traumatic situation that prompted the

child’s removal in the first place. This is particularly true

when the return places the child’s primary caretaker back

in the control of her abuser. Indeed, returning a child to

an abusive situation “is rarely an appropriate judicial response to domestic violence,” even where the abuser has

not directly harmed the child. Id. at 115. A batterer may

be “severely controlling” and use a “harsh, rigid disciplinary style” “caus[ing] the reawakening of traumatic memories, setting back post-separation healing.” Id. at 115-16

(quotation omitted).

Both Congress and the Permanent Bureau of the

Hague Conference have recognized the severe trauma

that children undergo in abusive homes. Congress has declared that “spouse abuse is relevant to child abuse in

child custody disputes,” because “children are emotionally traumatized by witnessing physical abuse of a parent”

and may experience “actual and potential emotional . . .

harm [and] the negative effects of exposure to an inappropriate role model.” H. Con. Res. 172, 101st Cong. 1990.

For its part, the Permanent Bureau has concluded that

“there are correlations between a child’s exposure to domestic violence, whether direct or indirect, and contemporaneous childhood and later problems in adult life.”

Hague Conference on Private International Law,

Domestic and Family Violence and the Article 13 “Grave

Risk” Exception in the Operation of the Hague

Convention of 25 October 1980 on the Civil Aspects of

International Child Abduction: A Reflection Paper ¶ 22

(Preliminary Document No 9 of May 2011) (Permanent

Bureau 2011). This includes “higher rates of aggressive

and antisocial and fearful and inhibited behaviours among

children, lower social competence, and higher than

11

average rates of anxiety, depression, trauma symptoms

and temperament problems.” Id. (quotation omitted).

To accord with the Hague Convention’s purpose and

to protect the best interests of removed children, this

Court should interpret “habitual residence” in the way

that best protects them from their return to environments

rife with domestic violence and abuse.

II. The “Actual Agreement” Standard for “Habitual

Residence” Best Ensures That Children Will Not Be

Returned to Abusers

A.

The Term “Habitual Residence,” Like the Hague

Convention as a Whole, Must Be Interpreted in

Light of the Best Interests of the Child

A removal is “wrongful” under the Hague Convention

only if it was done “in breach of rights of custody . . . under the law of the State in which the child was habitually

resident.” Hague Convention, art. 3(a). If the removal

was not wrongful, a parent cannot seek the return of the

child under the Hague Convention or its implementing

legislation, see the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., and any custody dispute will be decided by the courts of the removedto country. For this reason, “[h]abitual residence is the

central—often outcome-determinative—concept on which

the entire system [of Hague Convention rules] is

founded.” Mozes v. Mozes, 239 F.3d 1067, 1072 (9th Cir.

2001).

Neither the Hague Convention nor ICARA defines

“habitual residence.” As a result, it is imperative for this

Court to interpret the concept “in the light of [the Hague

Convention’s] object and purpose”—namely, the protection of children. See Restatement (Third) of Foreign Relations Law § 325(1) (1987); see also United States v. Stuart, 489 U.S. 353, 368 (1989) (“[A] treaty should generally

be construed . . . to give effect to the purpose which

12

animates it.” (internal quotation marks omitted) (citing

Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163

(1940)).

B. An “Actual Agreement” Standard for “Habitual

Residence” Places the Proper Amount of

Emphasis on the Subjective Mental State of the

Fleeing Parent

In this case, the Sixth Circuit affirmed the District

Court’s habitual-residence finding even though it was undisputed that Monasky had a “stated desire” to flee Italy

“as soon as possible,” Pet. App. 93a–94a. The Sixth Circuit held that the record was actually “two-sided” on the

question of Monasky’s intent, because Monasky had “set

up routine checkups for [her child] in Italy” and, together

with her husband, “purchased several items necessary for

raising [her child] in Italy,” including a stroller and a bassinet. Id. at 10a–11a.

The assumption underlying the Sixth Circuit’s decision is that a person’s public-facing actions presumptively,

perhaps conclusively, indicate speak for the motivations

behind them. For victims of domestic violence, however,

that holding could not be more wrong—or more dangerous.

In many cases, observable actions can be used to determine a person’s motivations and to support a finding of

shared intent. However, in cases involving domestic violence, the fleeing parent’s observable actions often run

counter to her actual intent—and deliberately so. District

courts should not be hamstrung by a purportedly “objective” standard that elevates observable behavior over

common sense in circumstances in which an abuse victim

would have sound reasons to act in ways that disguise, rather than reveal, her true intentions.

Indeed, victims of domestic violence are unlikely to

ever overtly show that they plan to leave their abuser. Research and amici’s combined decades of experience make

13

clear that the most dangerous time for an abuse victim is

when she leaves. See, e.g., Weiner, International Child

Abduction, supra, at 626. Victims are often “most vulnerable to stalking, assault, abuse, and homicide” at the

moment that they leave their partners. Kaye, supra, at

193. Indeed, battered women are 75 percent more likely

to be murdered when they try to flee. Sarah M. Buel,

Fifty Obstacles to Leaving, a.k.a., Why Abuse Victims

Stay, 28 The Colorado Lawyer 19, 19 (1999). Individuals

who plan to leave the web of control of their abusers need

to be especially careful imminently before they leave because it is precisely “[a]t the moment of separation or attempted separation” that “the batterer’s quest for control

often becomes most acutely violent and potentially lethal.” Martha R. Mahoney, Legal Images of Battered

Women: Redefining the Issue of Separation, 90 Mich. L.

Rev. 1, 5–6 (1991).

As a result, while a victim may seek out social support, make safety plans, or set limits on the relationship,

these are subtle shifts that “[a]re not always visible to the

casual observer.” Deborah K. Anderson & Daniel G.

Saunders, Leaving an Abusive Partner, 4 Trauma, Violence, & Abuse 163, 176 (2003). Abuse victims often need

their abuser to believe that they will stay under their

abuser’s power and control—and in the country—to ensure their safety and the safety of their children. Indeed,

many women stay with partners who batter them while

preparing to leave surreptitiously. As the World Health

Organization has noted, “most abused women are not

passive victims;” and “what might be interpreted” later by

a judge as a mother’s “inaction may in fact be the result of

a calculated assessment about how to protect herself and

her children.” World Health Org., Understanding and

Addressing Violence Against Women: Intimate Partner

Violence 3 (2012).

14

If a victim’s plan is uncovered before the victim is

ready to leave, she may never have the chance to seek

safety. This is why amici and other domestic violence service providers work closely with clients considering leaving their abusers to create safety plans to help victims and

their children leave quietly and confidentially. It is also

why, in cases involving domestic violence, what are often

characterized as objective indicia of intent to reside in a

country indefinitely (such as enrolling a child in school)

are such poor indicators of actual intent. On the surface,

life must go on until all measures are in place to ensure a

domestic violence victim’s best possible chance of leaving

her abuser safely.

Amici therefore support the adoption of an “actual

agreement” standard for determining the habitual residence of children too young to have acclimated to any one

country. Even when an abuse victim acts in a manner that

would appear to evince an intent to stay with her abuser,

she still retains the thought of fleeing the moment the opportunity arises. The “actual agreement” standard would

therefore allow parents to explain their intentions in staying, their fear of their batterers, and their concerns for

their own and their child’s safety. Such evidence would

better reveal the actual intent of the parent and should

thus be an essential element of the analysis of “shared parental intent” in such cases.

C.

The “Actual Agreement” Standard Provides

American Courts With Greater Discretion to

Make Repatriation Decisions.

The Sixth Circuit rejected the “actual agreement”

standard on the grounds that it may lead to findings of “no

habitual residence for children, leaving the population

most vulnerable to [removal] the least protected.” Pet.

App. 13a (emphasis added). But as the principal dissent

correctly recognized in this case, the “assumption that

every child must have” a habitual residence is a “faulty”

15

one. Id. at 30a. “[I]f an attachment to a State does not

exist, it should hardly be invented.” In re A.L.C., 607 F.

App’x 658, 662 (9th Cir. 2015) (quotation omitted). Moreover, this notion does not accurately reflect the reality of

Hague Convention cases today. See supra Sec. I.A.

An “actual agreement” standard would actually increase protections for children. The standard would provide American courts with more discretion to evaluate the

dynamics between parents based on their demeanor in the

neutral environment of the courtroom—rather than

based on their outward behavior in an environment where

the removing parent was forced to obscure her intentions.

Such a standard therefore reduces the likelihood that domestic violence cases will end in the return of a child to an

abuser. That result is in line with the purpose of the Convention: to protect the best interests of the child.

Considering whether parents actually had a “meeting of the minds” when determining a child’s habitual residence in cases involving domestic abuse may make a

court’s fact-finding more difficult, but it better reflects

these situations’ reality. More importantly, this analysis

better positions the court to protect a child’s safety. As a

practical matter, it may in some cases increase the likelihood that a child has no habitual residence. However,

such a finding does not end the inquiry; it simply means

that custody will be adjudicated by the jurisdiction to

which the child was removed.

D. The “Actual Agreement” Standard Is in Line

With International Consensus

In enacting ICARA, Congress recognized “the need

for uniform international interpretation of the Convention.” 22 U.S.C. § 9001(b)(3)(B). The U.S. Department of

State similarly expressed a desire that ICARA would “ensure greater uniformity in the Convention’s implementation and interpretation.” H.R. Rep. No. 525, 100th Cong.,

2d Session 1988, 1988 U.S.C.C.A.N. 386, 399.

16

Accordingly, this Court has long held that “[a] uniform, text-based approach ensures international consistency in interpreting the [Hague] Convention,” Abbott,

560 U.S. at 12. Uniformity helps “deter[] child abductions

by parents who attempt to find a friendlier forum for deciding custodial disputes.” Id. at 20. To further the

Hague Convention’s goal of deterring forum shopping,

then, “it is necessary, as much as reasonably possible, to

ensure that the response given by the courts in all [Contracting States] to an individual abduction will be the

same.” Br. for Perm. Bureau of the Hague Conference on

Private Int’l Law as Amici Curiae Supporting Petitioner

at 9, Abbott v. Abbott, 560 U.S. 1 (2010) (No. 08-645).

Courts in the United Kingdom, Australia, Canada,

and Hong Kong have held or recognized that the settled

or shared intent of the child’s parents to reside in a particular state for an appreciable period of time is a critical

factor in determining the child’s habitual residence. E.g.,

Dep’t of Family and Cmty. Servs. v. Kayasinghe [2018]

FamCA 697 (Austl.); Kong v. Song, 2018 BCSC 1691

(Can.); MJB v. CWC, [2018] HKEC 1741 (C.F.I.) (H.K.);

Re D. (A Child) (Jurisdiction: Habitual Residence) 2016

EWHC 1689 (Fam) (U.K.). Here, by contrast, the Sixth

Circuit en banc affirmed the District Court’s holding that

Monasky’s subjective intent to flee Italy was not dispositive. See Pet. App. 12a–13a. Vacating the Sixth Circuit’s

decision is therefore necessary to ensure the “uniform”

application of the Hague Convention internationally. Abbott, 560 U.S. at 12.

E. The Convention’s “Grave Risk” Exception Is Not

Sufficient to Prevent the Return of Children to

Abusive Parents

Article 13(b) of the Hague Convention states that the

return of a child is not required if the parent opposing return establishes that “there is a grave risk that [the

child’s] return would expose the child to physical or

17

psychological harm.” Hague Convention, art. 13(b). Under U.S. law, the parent opposing return must establish a

“grave risk” by “clear and convincing evidence.” 22

U.S.C. § 9003(e)(2)(A).

Courts routinely construe the “grave risk” standard

narrowly, which renders it inapplicable in many circumstances where return would place a child in a volatile and

dangerous environment. See, e.g., Souratgar v. Lee, 720

F.3d 96, 103 (2d Cir. 2013); Soto v. Contreras, 880 F.3d

706, 712–713 (5th Cir. 2018); Baxter v. Baxter, 423 F.3d

363, 373–374 (3d Cir. 2005). Indeed, “[f]indings of grave

risk are rare.” Soto, 880 F.3d at 710 (5th Cir. 2018) (citing

Delgado v. Osuna, No. 4:15-CV-00360-CAN, 2015 WL

5095231, at *13 (E.D. Tex. Aug. 28, 2015), aff'd, 837 F.3d

571 (5th Cir. 2016)).

In many cases—such as the one at issue here—courts

disregard domestic violence as evidence that a child will

be in danger upon return, because the abuse in question

was not specifically directed at the child. Similarly, courts

have discounted the notion that an abusive partner may

be an abusive parent. See, e.g., Belay v. Getachew, 272 F.

Supp. 2d 553, 560 (D. Md. 2003) (finding the “grave risk”

exception inapplicable because, “to the extent that any

abuse did occur, it is evident that it will never occur again”

because the parents had since divorced). Some courts

have even read this exception to mean that “the court is

not to make a determination of the child’s best interest.”

March v. Levine, 136 F. Supp. 2d 831, 843–44 (M.D. Tenn.

2000) (emphasis added). Commentators have therefore

long considered the grave risk exception “insufficient” to

protect victims of domestic violence and their children.

Weiner, International Child Abduction, supra, at 704.

The District Court’s decision in this case is particularly illustrative. The District Court specifically found

that Taglieri physically and verbally abused Monasky on

numerous occasions. Pet. App. 105a. The Court

18

nonetheless declined to apply the “grave risk” exception

on the grounds that Taglieri “was [n]ever physically violent towards [their child].” Id. (emphasis added). The

District Court’s holding, however, minimizes the fact that

a child can become a victim of domestic abuse once the

previously abused parent is out of the picture, and can suffer severe psychological harm from simply being raised in

an abusive home. See supra Sec. I.B.

Numerous courts have unfortunately echoed the District Court’s refusal to invoke the “grave risk” exception

in the face of blatant and horrific evidence of abuse:

 The First Circuit found that there was no “grave

risk” of harm in a case where the fleeing spouse

“described incidents of brutality that . . . paint a

disturbing portrait of a physically, sexually, and

emotionally abusive and controlling husband”—

allegations that “were not to be taken lightly.”

Mauvais v. Herisse, 772 F.3d 6, 18 (1st Cir. 2014).

 The Western District of Kentucky found that

there was no “grave risk” of harm in a case where

a husband had raped his wife on three separate

occasions and pushed her twice while she was

holding their child. He had countered his wife’s

allegations by pointing to a lack of photographic

evidence documenting the abuse “aside from several photographs showing light, minor bruising”

on both the mother and child. Pliego v. Hayes, 86

F. Supp. 3d 678, 699–703 (W.D. Ky. 2015).

 The District of Massachusetts found that there

was no “grave risk” of harm in a case where a clinical psychologist had expressly determined that

the children had been “frequently exposed to situations that put them at serious risk for current

and future psychological harm.” McManus v.

McManus, 354 F. Supp. 2d 62, 69 (D. Mass. 2005)

(quotation omitted). The court held that a

19









“serious risk” of harm did not rise to the level of a

“grave risk” of harm. Id. at 70 (emphasis added).

The District of Maryland found that there was no

“grave risk” of harm in a case where the abused

spouse needed to visit a shelter for battered

women and testified that her daughter “had to

bear witness to the marital abuse” firsthand. Belay v. Getachew, 272 F. Supp. 2d 553, 556 (D. Md.

2003).

The Northern District of Illinois found that there

was no “grave risk” of harm in a case where the

abusive spouse had “slapped [the fleeing parent]

at least three times, hit her on the head with his

fist at least twice, grabbed at her waist and threw

her down at least once, allegedly choked her

briefly, and hit her in the face with his arm.”

Tabacchi v. Harrison, No. 99 C 4130, 2000 WL

190576, at *12 (N.D. Ill. Feb. 10, 2000).

The Supreme Court of Kansas found that there

was no “grave risk” of harm in a case where the

abusive spouse attacked the fleeing spouse in

front of the children—pulling her hair and kicking

her—and struck the children with a belt during

meals. Dalmasso v. Dalmasso, 269 Kan. 752, 761,

9 P.3d 551, 558 (2000).

The Court of Appeals of Kentucky found that

there was no “grave risk” of harm in a case where

the abusive spouse once “went into a violent rage,

destroyed items in the house, and pushed [the

children] to the floor,” and “on one occasion . . .

pulled [his child’s] hair so violently during a quarrel that she was hospitalized with severe neck injuries.”

Janakakis-Kostun v. Janakakis, 6

S.W.3d 843, 850 (Ky. Ct. App. 1999).

20

In short, “the courts’ appropriate concern that the

[“grave risk” exception] not be permitted to swallow the

return rule has . . . developed into an improper disregard

for the Convention’s intended protections against danger.” Carol S. Bruch, The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases, 38 FAM. L.Q. 529, 535 (2004).

The exception, standing alone, fails to sufficiently safeguard children from being returned to abusive homes.

For this reason, “habitual residence” must be interpreted

in a manner to prevent these sorts of returns.

CONCLUSION

For the foregoing reasons, amici urge the Court to

vacate the decision below.

Respectfully submitted.

MICHAEL A.F. JOHNSON

Counsel of Record

DIRK C. PHILLIPS

KATELYN A. HORNE

AVISHAI D. DON

SHIRA V. ANDERSON

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

michael.johnson@arnoldporter.com

AUGUST 2019