Amicus Curiae Brief — Michelle Monasky, Petitioner v. Domenico Taglieri
Supreme Court briefAug 22, 2019
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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 FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING NEITHER PARTY
MARIK A. STRING
Acting Legal Adviser
Department of State
Washington, D.C. 20210
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
The Hague Convention on the Civil Aspects of International Child Abduction generally requires that any
child wrongfully removed from her country of “habitual
residence” be returned to that country. The questions
presented are:
1. Whether a district court’s determination of habitual residence under the Convention should be reviewed
de novo, under a deferential version of de novo review,
or under clear-error review.
2. When a child is too young to acclimate to her surroundings, whether a subjective agreement between
her parents is necessary to establish her habitual residence under the Convention.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 9
Argument..................................................................................... 12
I. A subjective agreement between the parents
is not required to establish an infant’s habitual
residence ......................................................................... 13
A. Determining a child’s habitual residence
requires a flexible and factbound inquiry ............. 14
B. Under a flexible and factbound inquiry, a
subjective parental agreement is not
categorically necessary ........................................... 23
II. Appellate courts should review determinations of
habitual residence for clear error ................................ 29
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
A (Children), In re, [2013] UKSC 60................. 21, 22, 24, 27
Abbott v. Abbott, 560 U.S. 1 (2010) ......................... 2, 3, 14, 20
Air France v. Saks, 470 U.S. 392 (1985) .............................. 19
Anderson v. Bessemer City, 470 U.S. 564 (1985) ............... 27
AR v. RN, [2015] UKSC 35 ............................................. 22, 32
Chafin v. Chafin, 568 U.S. 165 (2013).................................. 31
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 28
District of Columbia v. Wesby,
138 S. Ct. 577 (2018) ........................................................... 16
KL (A Child), In re, [2013] UKSC 75 .................................. 22
LCYP v. JEK, [2015] 5 H.K.C. 293 (C.A.) ..................... 22, 32
LK v. Director-General, Dep’t of Cmty. Servs. (2009)
237 CLR 582 (Austl.) .......................................................... 23
(III)
IV
Cases—Continued:
Page
Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) .................. 16
Martinez v. Bynum, 461 U.S. 321 (1983) ............................ 25
Medellin v. Texas, 552 U.S. 491 (2008) ......................... 16, 19
Case C-497/10, Mercredi v. Chaffe,
ECLI:EU:C:2010:829 (E.C.J. Dec. 22, 2010)................... 21
Office of the Children’s Lawyer v. Balev,
[2018] 1 S.C.R. 398 (Can.) ..................... 10, 20, 23, 27, 28, 32
Case C-111/17, OL v. PQ, ECLI:EU:C:2017:436
(E.C.J. June 8, 2017)............................................... 10, 21, 27
Pierce v. Underwood, 487 U.S. 552 (1988) ................ 9, 16, 29
Punter v. Secretary for Justice
[2007] 1 NZLR 40 (CA) .......................................... 22, 27, 31
Redmond v. Redmond, 724 F.3d 729
(7th Cir. 2013) ................................................................ 26, 28
Santovincenzo v. Egan, 284 U.S. 30 (1931)......................... 14
Case C-393/18, UD v. XB, ECLI:EU:C:2018:835
(E.C.J. Oct. 17, 2018) .......................................................... 27
U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC,
138 S. Ct. 960 (2018) ......................................... 11, 12, 29, 30
United States v. Stitt, 139 S. Ct. 399 (2018) ........................ 28
Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988).............................................................. 14
Treaties, statutes, and regulations:
Compact of Free Association with the Federated
States of Micronesia and the Republic of the
Marshall Islands, 48 U.S.C. 1901 note.............................. 15
tit. IV, art. VI, § 461(g) ................................................... 15
Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption,
S. Treaty Doc. No. 51, 105th Cong., 2d Sess. (1998),
1870 U.N.T.S. 167 ............................................................... 15
V
Treaties, statutes, and regulations—Continued:
Page
Hague Convention on the Civil Aspects of
International Child Abduction, done Oct. 25, 1980,
T.I.A.S. No. 11,670, 1343 U.N.T.S. 89............................. 1, 3
preamble, 1343 U.N.T.S. 98 ..................................... 13, 16
art. 1, 1343 U.N.T.S. 98............................................... 2, 31
art. 3, 1342 U.N.T.S. 98..................................................... 2
art. 5, 1343 U.N.T.S. 99..................................................... 2
art. 11, 1343 U.N.T.S. 100 ........................................... 2, 17
art. 12, 1343 U.N.T.S. 100 ........................................... 2, 17
art. 13, 1343 U.N.T.S. 101 ............................................... 17
art. 16, 1343 U.N.T.S. 101 ............................................... 17
art. 19, 1343 U.N.T.S. 101 ............................................... 17
International Child Abduction Remedies Act,
Pub. L. No. 100-300, 102 Stat. 437 ...................................... 3
22 U.S.C. 9001 et seq. (Supp. V 2017) .............................. 3
22 U.S.C. 9001(a)(1) ............................................. 13, 16
22 U.S.C. 9001(a)(3) ..................................................... 3
22 U.S.C. 9001(a)(4) ..................................................... 3
22 U.S.C. 9001(b)(3) ............................................. 16, 32
22 U.S.C. 9001(b)(3)(B) ......................................... 3, 20
22 U.S.C. 9001(b)(4) ................................................... 17
22 U.S.C. 9003(b) ......................................................... 3
22 U.S.C. 9003(d) ......................................................... 3
8 C.F.R.:
Section 204.303(b) ............................................................ 15
Section 214.7(a)(4)(i) ....................................................... 15
Miscellaneous:
A. E. Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L.Q. 537
(1981) .................................................................................... 18
VI
Miscellaneous—Continued:
Page
Jeff Atkinson, The Meaning of “Habitual Residence”
Under the Hague Convention on the Civil Aspects
of International Child Abduction and the Hague
Convention on the Protection of Children, 63 Okla.
L. Rev. 647 (2011) ......................................................... 17, 27
Paul R. Beaumont & Peter E. McEleavy, The Hague
Conference on International Child Abduction
(Oxford Univ. Press 1999) ............................................ 19, 24
Black’s Law Dictionary (5th ed. 1979) ............................... 14
Department of State, Legal Analysis of the Hague
Convention on the Civil Aspects of International
Child Abduction, 51 Fed. Reg. 10,494 (Mar. 26,
1986) ....................................................................................... 2
Erin Gallagher, A House Is Not (Necessarily)
a Home: A Discussion of the Common Law
Approach to Habitual Residence, 47 N.Y.U.
J. Int’l L. & Pol. 463 (2015) ................................................ 19
Members of the First Commission, Procès-verbaux
et Documents de travail de la Première
commission, in 3 Actes et Documents de la
Quatorzième Session 253 (1982) ......................................... 3
Kurt H. Nadelmann, Habitual Residence and
Nationality as Tests at The Hague: The 1968
Convention on Recognition of Divorces,
47 Tex. L. Rev. 766 (1969) ............................................ 17, 18
Oxford English Dictionary (2d ed. 1989):
Vol. 6 ................................................................................. 14
Vol. 13 ............................................................................... 14
Elisa Pérez-Vera, Explanatory Report on the 1980
Hague Child Abduction Convention (Permanent
Bureau trans., 1982), in 3 Actes et Documents de la
Quatorzième Session 426.......................................... passim
VII
Miscellaneous—Continued:
Page
Webster’s Third New International Dictionary
(1976) .................................................................................... 14
In the 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
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING NEITHER PARTY
INTEREST OF THE UNITED STATES
This case involves the standard for determining a
child’s habitual residence under the Hague Convention
on the Civil Aspects of International Child Abduction
and the standard for reviewing that determination on
appeal. The United States participated in the negotiation of, and is a party to, the Convention, and the Department of State is the designated Central Authority
that coordinates with other contracting states and assists in the Convention’s implementation in the United
States. The United States thus has a substantial interest in the proper interpretation and application of the
Convention.
STATEMENT
1. The Hague Convention on the Civil Aspects of
International Child Abduction, done Oct. 25, 1980,
(1)
2
T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, “was adopted in
1980 in response to the problem of international child
abductions during domestic disputes,” Abbott v. Abbott,
560 U.S. 1, 8 (2010). See Department of State, Legal
Analysis of the Hague Convention on the Civil Aspects
of International Child Abduction, 51 Fed. Reg. 10,494,
10,503-10,516 (Mar. 26, 1986). Among the Convention’s
purposes is “to secure the prompt return of children
wrongfully removed to or retained in any Contracting
State.” Convention art. 1; see id. art. 5.
A removal is “wrongful” if it breaches existing rights
of custody or access “under the law of the State in which
the child was habitually resident immediately before
the removal.” Convention art. 3. If the court of a contracting state determines that a child has been wrongfully removed, it must order the return of the child to
his or her country of habitual residence unless one of
the Convention’s exceptions applies. Id. arts. 11, 12; see
Abbott, 560 U.S. at 9 (“The Convention’s central operating feature is the return remedy.”); 51 Fed. Reg. at
10,507 (same). The return remedy reflects the Convention’s premises that “the best interests of the child are
well served when decisions regarding custody rights
are made in the country of habitual residence,” Abbott,
560 U.S. at 20, and that an abducting parent should gain
no benefit from unilaterally attempting to change the
forum. Elisa Pérez-Vera, Explanatory Report on the
1980 Hague Child Abduction Convention ¶¶ 16, 19 (Permanent Bureau trans., 1982) (Explanatory Report), in
3 Actes et Documents de la Quatorzième Session 426.
(The State Department has described the explanatory
report as “the official history and commentary on
the Convention.” 51 Fed. Reg. at 10,503; cf. Abbott,
560 U.S. at 19.) Accordingly, a threshold determination
3
in any proceeding under the Convention is to determine
the place of the child’s “habitual residence.” The Convention, however, does not define that term.
The United States participated in the negotiation of
the Convention, see Members of the First Commission,
Procès-verbaux et Documents de travail de la Première
commission, in 3 Actes et Documents 253-255, and the
Convention entered into force for the United States in
1988. See T.I.A.S. No. 11,670, supra. To implement the
Convention, Congress enacted the International Child
Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat.
437, which establishes procedures for requesting return
of a child abducted to the United States. See 22 U.S.C.
9001 et seq. (Supp. V 2017). * In so doing, Congress
found that “concerted cooperation pursuant to an international agreement” and “uniform international interpretation of the Convention” were necessary to combat
international child abduction. 22 U.S.C. 9001(a)(3) and
(b)(3)(B); see Abbott, 560 U.S. at 16.
The Act authorizes “[a]ny person” seeking return of
a child under the Convention to file a petition in state
or federal court. 22 U.S.C. 9003(b). The court “shall
decide the case in accordance with the Convention.”
22 U.S.C. 9003(d). Absent a finding that one of the Convention’s exceptions applies, a child determined to have
been wrongfully removed within the meaning of the
Convention must be “promptly returned” to his or her
country of habitual residence. 22 U.S.C. 9001(a)(4).
The Act, like the Convention, does not define “habitual
residence.”
In 2014, the codified Act was transferred from Title 42 of the
United States Code to Title 22, so all references in this brief to those
statutory provisions are to Supplement V (2017) of the 2012 edition.
*
4
2. a. Petitioner, a United States citizen, and respondent, an Italian citizen, were married in Illinois in
2011. Pet. App. 3a. Two years later, they moved to Milan, Italy, where each had obtained employment. Id. at
74a. Petitioner became pregnant roughly a year after
the move, and their daughter, A.M.T., was born in February 2015. Id. at 3a-4a, 75a-80a. Not long after
A.M.T.’s birth, petitioner went to the police, reporting
that respondent was abusive and seeking shelter in a
safe house. Id. at 81a. In April 2015, petitioner left Italy for the United States with A.M.T., who was eight
weeks old. Ibid.
Respondent obtained an ex parte order from an Italian court terminating petitioner’s parental rights. Pet.
App. 81a. He also filed this petition under the Convention in federal district court, alleging that A.M.T. had
been wrongfully removed from Italy and seeking her return there. See id. at 82a.
b. After a four-day bench trial, the district court ordered petitioner to return A.M.T. to Italy. Pet. App.
73a-107a.
The district court observed that “habitual residence
is a threshold determination under the Convention” because removal “is only ‘wrongful’ if the child is removed
from her habitual residence.” Pet. App. 83a. The court
explained that under Sixth Circuit precedent, “a child’s
habitual residence is the nation where, at the time of
their removal, the child has been present long enough
to allow acclimatization, and where this presence has ‘a
degree of settled purpose from the child’s perspective.’ ”
Id. at 85a-86a (citations omitted). The court observed,
however, that young children or infants like A.M.T. cannot form a perspective on their surroundings. Id. at
87a. Accordingly, borrowing a standard used by other
5
circuits, the court held that it “must look to the ‘settled
purpose and shared intent of the child’s parents’ ” to determine an infant’s habitual residence. Id. at 89a (citation omitted); see id. at 88a-89a.
Applying that shared-parental-intent standard, the
district court concluded that Italy was A.M.T.’s habitual
residence and that petitioner’s removal of A.M.T. to the
United States was thus wrongful. Pet. App. 90a-100a.
The court rejected petitioner’s argument that she and
respondent had never agreed to settle in Italy permanently and thus could not have held a shared parental
intent to raise A.M.T. there. See id. at 90a-92a. Instead, the court determined that the balance of the evidence showed that the “parties established a marital
home in Italy,” that petitioner’s conduct “seemed to reflect a settled purpose and intent to remain in Italy, at
least for an undetermined period of time,” and that petitioner’s plan to leave Italy had not “crystalized” until
shortly before she left. Id. at 94a, 97a.
c. Both the court of appeals and Justice Kagan, acting as circuit Justice, denied a stay of the district court’s
order. C.A. Doc. 24 (Nov. 30, 2016); Order in No.
16A557 (Dec. 9, 2016). Petitioner thereupon returned
A.M.T. to Italy, where she has lived since. See Pet. App.
5a; Pet. Br. 11-12, 54-55.
3. A panel of the court of appeals affirmed. Pet.
App. 42a-71a. Reviewing its own precedent, including a
case decided after the district court’s decision here, the
court of appeals determined that it had used “three distinct standards to determine a child’s habitual residence.” Id. at 53a. First, “where the child has resided
exclusively in a single country, that country is the
child’s habitual residence.” Ibid. Second, a country is
a habitual residence if “the child has been present long
6
enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s
perspective.’ ” Ibid. (citations omitted); see id. at 53a54a. Third, if the child is very young and thus “ ‘lack[s]
the cognizance to acclimate to any residence,’ ” the court
“consider[s] the shared parental intent of the child’s
parents.” Id. at 54a (citation omitted).
Applying that framework, the court of appeals determined that A.M.T.’s habitual residence was in Italy because she “was born in Italy and resided there exclusively until [petitioner] took A.M.T. to the United
States.” Pet. App. 54a. The court declined to address
shared parental intent because under its framework,
A.M.T.’s exclusive residence in Italy was dispositive.
See id. at 54a-55a.
Judge Moore dissented. Pet. App. 60a-71a. She would
have applied the “shared-parental-intent standard.” Id.
at 67a. “What matters” under that standard, Judge
Moore explained, “is where the parents ‘intended the
children to live.’ ” Id. at 69a (citation omitted). In her
view, a petitioner under the Convention “fail[s] to satisfy his burden of proof under the shared-parentalintent standard” “if the shared intent is ‘either unclear
or absent.’ ” Ibid. Judge Moore thus would have reversed the district court’s judgment. Id. at 71a.
4. On rehearing en banc, the court of appeals again
affirmed the district court’s judgment. Pet. App. 1a40a.
a. The court of appeals determined that its precedent “offers two ways to identify a child’s habitual residence.” Pet. App. 7a. The court explained that “[t]he
primary approach looks to the place in which the child
has become ‘acclimatized.’ ” Ibid. (citation omitted).
“The second approach,” the court explained, is “a back-
7
up inquiry for children too young or too disabled to become acclimatized.” Ibid. That inquiry, which “looks to
‘shared parental intent,’ ” directs courts “to identify the
location where the parents ‘intended the child to live.’ ”
Id. at 7a-8a (brackets and citation omitted).
The court of appeals emphasized, however, that
“[b]oth of these inquiries come back to the same, allimportant point—the habitual residence of the child.”
Pet. App. 8a. Consistent with that principle, the court
reiterated that “the habitual residence of a child [i]s a
question of fact.” Id. at 9a; see id. at 8a (“The Hague
Convention’s explanatory report treats a child’s habitual residence as ‘a question of pure fact.’ ”) (citation
omitted).
Accordingly, the court of appeals reviewed the district court’s factual finding of habitual residence for
clear error. See Pet. App. 9a. Although the court of
appeals found that some of the evidence in the record
supported finding a shared parental intent to raise
A.M.T. in Italy, other evidence suggested that the parents had formed no such intent. See id. at 10a. “Faced
with this two-sided record,” the court observed, the district court “had the authority to rule in either direction.” Id. at 11a. Under clear-error review, the court of
appeals determined that it “ha[d] no warrant to secondguess [the district court’s] well-considered finding.”
Ibid.
The court of appeals rejected petitioner’s argument
that she and respondent “never had a ‘meeting of the
minds’ about their child’s future home.” Pet. App. 12a
(citation omitted). “[T]hat possibility,” the court explained, “offers a sufficient, not a necessary, basis for
locating an infant’s habitual residence.” Ibid. The court
8
observed that requiring “a subjective agreement between the parents * * * would place undue weight on
one side of the scale” and in effect “would create a presumption of no habitual residence for infants, leaving
the population most vulnerable to abduction the least
protected” by the Convention. Id. at 12a-13a.
b. Judge Boggs concurred, reiterating the view he
expressed for the panel majority that when “a child has
lived in only one country with his or her parents, * * *
that country is the child’s habitual residence, absent unusual circumstances.” Pet. App. 17a; see id. at 14a-23a.
c. Judge Moore dissented. Pet. App. 23a-34a. She
agreed that finding a child’s habitual residence “is necessarily a fact-intensive inquiry.” Id. at 28a; see id. at
26a. And she “agree[d] with the lead opinion [that] the
applicable legal standard” here was shared parental intent. Id. at 34a; see id. at 24a. Nevertheless, Judge
Moore believed that the “district court’s ultimate determination of habitual residence—in other words, its application of the legal standard to its findings of fact—is
reviewed de novo.” Id. at 30a. In her view, the district
court had unduly focused on petitioner’s uncertain plans
to leave Italy and the location of the marital home, see
id. at 31a-33a, perhaps because it had been “forced to
hypothesize about the contours” of the shared-parentintent standard since the Sixth Circuit had not yet
adopted that standard at the time of the district court’s
decision, id. at 31a. Accordingly, Judge Moore would
have remanded for the district court to reevaluate
A.M.T.’s habitual residence in light of the new circuit
precedent. Id. at 34a.
d. Judges Gibbons (Pet. App. 34a-38a) and Stranch
(id. at 38a-40a) also filed dissenting opinions, agreeing
that the district court erred by failing to “focus[] on
9
where the parents ‘intended the child to live.’ ” Pet.
App. 36a (brackets and citation omitted).
SUMMARY OF ARGUMENT
1. A subjective or actual parental agreement is not
necessary to a determination of habitual residence.
a. The Convention’s text, its negotiation and drafting history, and case law from other contracting parties
demonstrate that determining a child’s habitual residence requires a flexible and factbound inquiry. The
ordinary meaning of habitual residence is the place
where an individual customarily or usually lives or
dwells. That is a quintessentially factual question that
resists further doctrinal explication or subdivision. The
physical location of one’s dwelling obviously is a question of fact, and whether the individual customarily or
usually dwells there invariably will involve “multifarious, fleeting, special, narrow facts that utterly resist generalization.” Pierce v. Underwood, 487 U.S. 552, 561-562
(1988) (citation omitted).
The Convention’s negotiation and drafting history
confirm that habitual residence is a factbound concept.
In choosing habitual residence as the Convention’s connecting factor, the drafters expressly rejected the two
principal alternatives—domicile and nationality—as being too rigid and technical. Rather, the drafters sought
to avoid any dependence on “artificial jurisdictional
links.” Explanatory Report ¶ 11. They therefore chose
“habitual residence,” an often-used term in the Hague
Conference on Private International Law that they understood was “a question of pure fact, differing in that
respect from domicile.” Id. ¶ 66. Habitual residence
also was chosen for its flexibility to adapt to changing
familial circumstances, which legalistic concepts like
domicile and nationality often cannot do.
10
Finally, emerging case law from other contracting
states to the Convention supports viewing habitual residence as a flexible and factbound concept. Recent decisions from the courts of contracting states, including
the Supreme Courts of Canada and the United Kingdom, as well as the Court of Justice of the European
Union, have made clear that determining a child’s habitual residence “reflects essentially a question of fact,”
Case C-111/17, OL v. PQ, ¶ 51, ECLI:EU:C:2017:436
(E.C.J. June 8, 2017), and that courts making such determinations “must look to all relevant considerations
arising from the facts of the case at hand,” Office of the
Children’s Lawyer v. Balev, [2018] 1 S.C.R. 398, 421
(Can.).
b. Under that flexible and factbound inquiry, the existence of a subjective parental agreement is neither
necessary nor sufficient to determine a child’s habitual
residence. “Imposing * * * legal construct[s] onto the
determination of habitual residence” would “detract[]
from the task of the finder of fact.” Balev, [2018]
1 S.C.R. at 422. Although a parental agreement might
be relevant in some cases, it should not be dispositive;
as the court of appeals here observed, Convention cases
frequently arise when “parents d[o] not see eye to eye
on much of anything.” Pet. App. 12a. A rigid requirement of a parental agreement would contravene the
flexible and factbound nature of habitual residence and
also in practice leave many young children with no habitual residence at all.
Instead, courts should consider all admissible evidence relevant to determining the ultimate factual inquiry: the location of the child’s usual or customary
dwelling. That can include evidence of the parents’ in-
11
tent (such as an actual agreement, parental employment, purchasing a home or signing a long-term lease,
establishing local bank accounts, or applying for driver’s
or professional licenses); the child’s ties to the place
(such as the length of residence, the child’s language
and assimilation, school or daycare enrollment, or participation in social activities); and any other relevant
factors (such as immigration status or the existence of
family and social networks).
Because the habitual-residence inquiry is factbound
and flexible, the relative weight of any given circumstance will vary from case to case and ultimately would
be a matter of discretion for the trial court. The inquiry
is not, however, boundless. For instance, setting aside
extraordinary circumstances (such as a child born on an
overseas vacation), a child’s habitual residence likely
cannot be in a country in which he or she has never been
physically present. In all cases, the touchstone is determining the child’s usual or customary dwelling.
Although the court of appeals here recognized that
the habitual residence inquiry “is one of fact,” Pet. App.
3a, and although the courts below determined A.M.T.’s
habitual residence without finding a subjective parental
agreement to be necessary to that determination, the
district court did not engage in the flexible and factbound inquiry required by the Convention. Accordingly, this Court should vacate and remand so that it can
apply that inquiry in the first instance.
2. Because it is a question of pure fact, a district
court’s determination of habitual residence should be
reviewed on appeal for clear error. That conclusion remains unchanged even if such determinations involve
mixed questions of law and fact. As this Court explained in U.S. Bank National Association v. Village at
12
Lakeridge, LLC, 138 S. Ct. 960 (2018), the standard of
appellate review for a mixed question depends “on
whether answering it entails primarily legal or factual
work.” Id. at 967. Determining habitual residence entails primarily factual work; it requires the district
court “to marshal and weigh evidence, make credibility
judgments, and otherwise address * * * ‘multifarious,
fleeting, special, narrow facts that utterly resist generalization.’ ” Ibid. (citation omitted). The court of appeals thus correctly determined that its review here was
for clear error. Indeed, courts of other contracting states
to the Convention, including the Supreme Court of Canada and the Court of Appeal of the High Court of Hong
Kong, agree that trial-court determinations of habitual
residence should be reviewed deferentially on appeal.
ARGUMENT
This case presents two questions: first, the standard
of appellate review applicable to a district court’s determination of a child’s habitual residence under the Convention, and second, whether a court must find a subjective parental agreement as part of that determination. In U.S. Bank National Association v. Village at
Lakeridge, LLC, 138 S. Ct. 960 (2018), this Court explained that for mixed questions of law and fact, the
standard of appellate review depends on whether applying the substantive rule of decision “entails primarily
legal or factual work.” Id. at 967. Determining the nature of the substantive rule is thus an antecedent inquiry. Accordingly, the government addresses the second question presented first.
As explained below, the Convention requires courts
determining a child’s habitual residence to eschew formal or rigid legal requirements, and instead to conduct
13
an inherently flexible and factbound inquiry. Accordingly, a subjective agreement between the child’s parents, while potentially relevant in some cases, is not categorically necessary to such a determination. And because the inquiry into habitual residence is predominantly factual, under U.S. Bank a district court’s finding of habitual residence should be reviewed for clear
error. Although the court of appeals here applied the
correct standard of review, neither court below applied
the correct substantive standard under the Convention
for determining habitual residence. Accordingly, this
Court should vacate the judgment below and remand
for further proceedings.
I. A SUBJECTIVE AGREEMENT BETWEEN THE PARENTS IS NOT REQUIRED TO ESTABLISH AN INFANT’S
HABITUAL RESIDENCE
As the court of appeals recognized, determining a
child’s habitual residence under the Convention is “a
question of pure fact.” Pet. App. 8a (citation omitted);
see id. at 9a. That factual inquiry must remain flexible
and take into account all relevant circumstances in each
case in light of the “paramount importance” under the
Convention of “the interests of children.” Convention
preamble; see 22 U.S.C. 9001(a)(1). Accordingly, no single piece of evidence can, in the abstract, be deemed either necessary or dispositive to determining habitual
residence. It follows that a subjective agreement between the parents regarding where an infant should
live—like any other potentially relevant evidence—is
not categorically required to establish the infant’s habitual residence.
14
A. Determining A Child’s Habitual Residence Requires A
Flexible And Factbound Inquiry
The ordinary meaning of the Convention’s text, its
negotiating and drafting history, and case law from
other contracting states all demonstrate that habitual
residence is a flexible and factbound concept.
1. “The interpretation of a treaty, like the interpretation of a statute, begins with its text,” Abbott v. Abbott,
560 U.S. 1, 10 (2010) (citation omitted), including “the
context in which the written words are used,” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,
699 (1988) (citations omitted). Here, the Convention,
“[f ]ollowing a long-established tradition of the Hague
Conference,” does not define habitual residence. Explanatory Report ¶ 53. But the term’s ordinary meaning reflects its inherently factual nature. See Abbott,
560 U.S. at 11 (applying the ordinary meaning of “place
of residence” in the Convention); cf. Santovincenzo v.
Egan, 284 U.S. 30, 40 (1931).
The ordinary meaning of “habitual” is “[c]ustomary”
or “usual.” Black’s Law Dictionary 640 (5th ed. 1979)
(Black’s); see 6 Oxford English Dictionary 996 (2d ed.
1989) (“existing as a settled practice or condition; constantly repeated or continued; customary”); Webster’s
Third New International Dictionary 1017 (1976) (Webster’s) (similar). And the ordinary meaning of “residence” is “[p]ersonal presence at some place of abode,”
Black’s 1176, or “one’s usual dwelling-place or abode,”
13 Oxford English Dictionary 707 (2d ed. 1989), or “the
act or fact of abiding or dwelling in a place for some
time,” Webster’s 1931; see ibid. (“a temporary or permanent dwelling place, abode, or habitation”). It follows that an individual is habitually resident in the place
15
or abode where he or she customarily or usually lives or
dwells.
That ordinary meaning is reflected in other areas of
law. For instance, setting aside some provisos not applicable here, Congress has defined “Habitual Residence” in the Compact of Free Association with the
Federated States of Micronesia and the Republic of the
Marshall Islands, 48 U.S.C. 1901 note, to mean “a place
of general abode or a principal, actual dwelling place of
a continuing or lasting nature.” Compact tit. IV, art. VI,
§ 461(g). The Department of Homeland Security has
adopted that definition for purposes of certain immigration laws. See 8 C.F.R. 214.7(a)(4)(i). And for purposes
of the Hague Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption,
S. Treaty Doc. No. 51, 105th Cong., 2d Sess. (1998), 1870
U.N.T.S. 167, the Department of Homeland Security
has promulgated regulations allowing a child adoptee to
be deemed habitually resident in the country of his or
her “actual residence” instead of his or her country of
citizenship as long as “the child’s status in that country
is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody.”
8 C.F.R. 204.303(b).
Consistent with those illustrations of the term’s ordinary meaning in other contexts, determining an individual’s “habitual residence” under the Convention is,
at bottom, a question of pure fact. The physical location
of someone’s actual abode or dwelling is obviously factual in nature. So too is whether that individual usually
or customarily lives in that location in a continuing or
lasting or sufficiently stable manner. However framed,
that inquiry resists further doctrinal explication or subdivision into component parts; the answer ultimately
16
will depend on the circumstances in a given case. Although the analogy is admittedly imperfect, determining an individual’s customary or usual dwelling, like
determining whether a legal position is substantially
justified, invariably will “involve multifarious, fleeting,
special, narrow facts that utterly resist generalization.”
Pierce v. Underwood, 487 U.S. 552, 561-562 (1988)
(citation omitted); cf. District of Columbia v. Wesby,
138 S. Ct. 577, 586 (2018) (observing that a probable
cause determination is “not readily, or even usefully, reduced to a neat set of legal rules”) (citation omitted).
2. That the inquiry into habitual residence is inherently flexible and factbound is reinforced by the Convention’s negotiation and drafting history. “Because a
treaty ratified by the United States is ‘an agreement
among sovereign powers,’ ” courts should interpret it in
light of “the negotiation and drafting history of the
treaty.” Medellin v. Texas, 552 U.S. 491, 507 (2008) (citation omitted). For the same reason, courts must “read
the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’ ” Lozano v. Montoya Alvarez, 572 U.S. 1, 12 (2014) (citations omitted);
see 22 U.S.C. 9001(b)(3).
Under the Convention, “the interests of children are
of paramount importance.” Convention preamble; see
22 U.S.C. 9001(a)(1). To that end, the Convention pursues the twin goals of “protect[ing] children internationally from the harmful effects of their wrongful removal” and “ensur[ing] their prompt return to the State
of their habitual residence.” Convention preamble.
Both goals “correspond to a specific idea of what constitutes the ‘best interests of the child.’ ” Explanatory Report ¶ 25. Even the Convention’s various exceptions to
its rule of prompt return—such as when “the child is
17
now settled in its new environment,” Convention art. 12,
or when “there is a grave risk that his or her return
would expose the child to” harm, Convention art. 13—
are in service of the child’s interests. See Explanatory
Report ¶¶ 25, 29-31.
Importantly, the Convention does not purport to resolve any underlying custody or access dispute; instead,
its remedy is limited to returning the child to her country of habitual residence, where the courts can adjudicate and resolve such disputes. See Convention arts. 16,
19; Explanatory Report ¶ 36; 22 U.S.C. 9001(b)(4). Accordingly, such returns should be “prompt,” Convention
preamble; indeed, the Convention appears to contemplate decisions on whether to return a child to be rendered within six weeks of a petition’s being filed, see
Convention art. 11.
Both the negotiators’ focus on the child’s interests
and the need for prompt resolution of petitions seeking
a child’s return are reflected in the choice of the flexible
and fact-specific concept of habitual residence as the
Convention’s “connecting factor.” In making that choice,
the drafters rejected the two main alternatives: domicile and nationality. The Hague Conference had generally abandoned nationality as the connecting factor in
its conventions in light of the rise of both stateless and
multiple-nationality individuals. See Kurt H. Nadelmann,
Habitual Residence and Nationality as Tests at The
Hague: The 1968 Convention on Recognition of Divorces,
47 Tex. L. Rev. 766, 766-767 (1969).
Nationality had itself replaced domicile, see Nadelmann 767, which was regarded as too “technical” and a
“term of art,” Jeff Atkinson, The Meaning of “Habitual
Residence” Under the Hague Convention on the Civil
Aspects of International Child Abduction and the
18
Hague Convention on the Protection of Children,
63 Okla. L. Rev. 647, 649 (2011) (citation omitted); see
Nadelmann 768 (observing that domicile had a “different meaning * * * in different systems”); see also Pet.
App. 56a (panel opinion below recognizing that “[h]abitual residence should not be determined through the
‘technical’ rules governing legal residence or common
law domicile”) (citation omitted); Pet. App. 85a (district
court order acknowledging the same). Accordingly, the
Hague Conference generally had settled on using habitual residence, which became “a well-established concept
in the Hague Conference.” Explanatory Report ¶ 66.
The Convention here was no different. Because of
their relative rigidity and inflexibility, both nationality
and domicile were unsuited for the Convention and its
goals. Professor Anton, the chairman of the commission
that drafted the Convention, explained:
The choice of the criterion of the habitual residence
of the child was scarcely contested. It was clearly
desirable to select a single criterion. That of the
child’s nationality seemed inappropriate because the
State with the primary concern to protect a child
against abduction is that of the place where he or she
usually lives. In some systems the criterion of domicile would point to that place, but in others domicile
has a technical character which was thought to make
its choice inappropriate.
A. E. Anton, The Hague Convention on International
Child Abduction, 30 Int’l & Comp. L.Q. 537, 544 (1981).
The Convention’s drafters thus chose habitual
residence—“the place where [the child] usually lives,”
Anton 544—which they viewed “as a question of pure
fact, differing in that respect from domicile.” Explana-
19
tory Report ¶ 66. Using the factbound concept of habitual residence avoided dependence on “artificial jurisdictional links,” id. ¶ 11, which would have been contrary
to the Convention’s goal of protecting the interests of
the child by promptly “restor[ing] a child to its own environment,” ibid. As commentators have observed,
“[t]he strength of habitual residence in the context of
family law is derived from the flexibility it has to respond to the demands of a modern, mobile society; a
characteristic which neither domicile nor nationality
can provide.” Paul R. Beaumont & Peter E. McEleavy,
The Hague Conference on International Child Abduction 89 (Oxford Univ. Press 1999). Habitual residence
was thus “chosen precisely for its flexibility to deal with
modern society.” Erin Gallagher, A House Is Not (Necessarily) a Home: A Discussion of the Common Law
Approach to Habitual Residence, 47 N.Y.U. J. Int’l L.
& Pol. 463, 468 (2015).
That negotiation and drafting history confirms that
habitual residence is a flexible and factbound concept
that resists further legal rules. As Professor Anton observed, because habitual residence is “a question of
fact,” further attempts to define it would be “otiose.”
Beaumont & McEleavy 89 (citation omitted). Indeed,
“the Hague Conference has continually declined to” define the term precisely so the concept can “retain[] the
maximum flexibility for which it [i]s so admired.” Id. at
89-90.
3. The views of other contracting states confirm that
habitual residence is a flexible and factbound concept.
This Court has explained that “ ‘the postratification understanding’ of signatory nations” is relevant to the interpretation of treaties. Medellin, 552 U.S. at 507 (citation omitted); see Air France v. Saks, 470 U.S. 392, 404
20
(1985) (explaining that “the opinions of our sister signatories [are] entitled to considerable weight”) (citation
omitted). That “principle applies with special force
here, for Congress has directed that ‘uniform international interpretation of the Convention’ is part of the
Convention’s framework.” Abbott, 560 U.S. at 16 (citation omitted); see 22 U.S.C. 9001(b)(3)(B). Consistent
with the term’s ordinary meaning as discussed above,
courts of other contracting states have converged on the
understanding that determining “habitual residence”
requires a flexible and factbound inquiry.
For example, the Supreme Court of Canada recently
explained that courts making determinations of habitual residence “must look to all relevant considerations
arising from the facts of the case at hand.” Office of the
Children’s Lawyer v. Balev, [2018] 1 S.C.R. 398, 421. In
adopting that flexible, factbound standard, the Canadian high court expressly rejected approaches that
would focus on either “the intention of the parents with
the right to determine where the child lives” (what it
deemed a “forward-looking parental intention model”),
or “the child’s acclimatization in a given country” (what
it deemed a “backward-focused” approach), to the exclusion of the other. Id. at 419-420. Instead, Balev determined that a “hybrid” approach—one that “considers all relevant links and circumstances” in all cases—
is the most appropriate under the Convention. Id. at
421. “Imposing * * * legal construct[s] onto the determination of habitual residence,” the Canadian high
court observed, would “detract[] from the task of the
finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal.” Id. at 422 (citation omitted).
21
Likewise, the Court of Justice of the European Union has held that determining a child’s place of habitual
residence under the European Council regulations implementing the Convention for intra-European cases
“reflects essentially a question of fact,” and courts making such determinations therefore must “tak[e] account
of all the circumstances of fact specific to each individual case.” Case C-111/17, OL v. PQ, ¶¶ 42, 51, ECLI:
EU:C:2017:436 (June 8, 2017). Of particular salience
here, in OL the Court of Justice explained that even
“[w]here the child in question is an infant,” courts must
consider a variety of evidence, including “the duration,
regularity, conditions and reasons for” the custodial
parent’s presence in the country at issue, as well as “geographic and family origins and the family and social
connections which [that parent] and child have with
that” country. Id. ¶ 45. The Court of Justice emphasized that although the “intention of the parents to settle permanently with the child in a Member State * * *
can also be taken into account, * * * the intention of
the parents cannot as a general rule by itself be crucial
to the determination of the habitual residence of a
child.” Id. ¶¶ 46-47. As the Court of Justice earlier had
explained in Case C-497/10, Mercredi v. Chaffe, ECLI:
EU:C:2010:829 (Dec. 22, 2010), “taking account of all
the circumstances of fact specific to each individual
case” is necessary to fulfill the Convention’s purposes.
Id. ¶ 47.
The Supreme Court of the United Kingdom likewise
has rejected efforts to “overlay the factual concept of
habitual residence with legal constructs.” In re A (Children), [2013] UKSC 60, ¶ 39. Instead, “habitual residence is a question of fact and not a legal concept such
as domicile,” and will “depend[] upon numerous factors,
22
* * * with the purposes and intentions of the parents
being merely one of the relevant factors.” Id. ¶ 54. The
high court reiterated that “[t]he essentially factual and
individual nature of the inquiry should not be glossed
with legal concepts which would produce a different result from that which the factual inquiry would produce.”
Ibid.; see AR v. RN, [2015] UKSC 35, ¶ 17; In re KL
(A Child), [2013] UKSC 75, ¶ 20.
In LCYP v. JEK, [2015] 5 H.K.C. 293, the Hong Kong
Court of Appeal of the High Court, citing In re A and
other United Kingdom cases, agreed that “[h]abitual
residence is a question of fact which should not be
glossed with legal concepts.” Id. ¶ 7.7 (citation omitted).
The court explained that although “parental intent does
play a part in establishing or changing the habitual residence of a child,” it is not dispositive and instead “will
have to be factored in, along with all the other relevant
factors,” in determining habitual residence. Ibid.
The Court of Appeal of New Zealand similarly rejected an exclusive shared-parental-intent approach in
Punter v. Secretary for Justice [2007] 1 NZLR 40, emphasizing “the need to ensure that the concept of habitual residence remains a factual one not limited by presumptions or presuppositions” and reiterating that
courts must consider “all of the relevant factual circumstances.” Id. at 66 (¶ 106); see id. at 71 (¶ 130) (explaining that “the test is a factual one, dependent on the combination of circumstances in the particular case”); id. at
85 (¶ 189) (“Parental purpose should be treated as an
important factor, but not decisive.”).
Agreeing that the “approach described in [Punter]
* * * should be followed,” the High Court of Australia
held that courts should undertake “ ‘a broad factual in-
23
quiry’ into all factors relevant to determining the habitual residence of a child, of which the settled purpose or
intention of the parents is an important but not necessarily decisive factor.” LK v. Director-General, Dep’t of
Cmty. Servs. (2009) 237 CLR 582, 591, 600 (¶¶ 18, 45).
The point need not be belabored. As Balev observed,
although there is not yet an “[a]bsolute consensus”
among contracting states to the Convention, the “clear
trend” from courts in those countries is to determine
habitual residence using a flexible, factbound approach
free from rigid legal or doctrinal requirements. [2018]
1 S.C.R at 423.
B. Under A Flexible And Factbound Inquiry, A Subjective
Parental Agreement Is Not Categorically Necessary
Because the determination of habitual residence is
inherently factbound and flexible, a subjective agreement between the parents is not necessary to that determination. Indeed, as explained above, even a shared
parental intent is not necessary to that determination,
so it follows a fortiori that an actual or subjective agreement between the parents—which even petitioner
agrees is relevant only insofar as it establishes such intent, see Pet. Br. 28-29—is not categorically required
either. To the contrary, as with all questions of fact,
courts may find a variety of evidence relevant to their
consideration, as the district court here did. Pet. App.
90a-98a; see pp. 26-27, infra (describing such types of
evidence). A subjective agreement between the parents
about where their child should live might in some cases
be relevant to determining the child’s habitual residence. For example, when a child has lived in several
countries, an agreement (or other indicia of parental intent) may shed light on whether the particular dwelling
24
from which the child was wrongfully removed was sufficiently stable, lasting, or continuing in nature for that
dwelling (as opposed to one of the other dwellings) to be
regarded as the place of habitual residence. See Pet.
App. 12a; In re A, supra, ¶ 54. But a subjective parental
agreement—or lack thereof—should not be dispositive;
as the court of appeals observed, cases under the Convention frequently arise in situations when the “parents
d[o] not see eye to eye on much of anything.” Pet. App.
12a.
Imposing a rigid requirement of a subjective agreement would contravene not only the flexible and factbound nature of the inquiry, but also the Convention’s
purposes. As the court of appeals observed, such a requirement would in practice leave many young children,
especially those who have resided in only one country,
with no habitual residence at all, thereby “leaving the
population most vulnerable to abduction the least protected” under the Convention. Pet. App. 13a. That
would undermine the Convention’s goal to “deprive [the
abducting parent’s] actions of any practical or juridical
consequences” by eliminating any benefit from unilaterally moving the child. Explanatory Report ¶ 16. To
be sure, it might be possible to construe the Convention
in such a way that in rare instances a very young child
may lack a habitual residence under the Convention.
See Pet. App. 29a-30a (Moore, J., dissenting); Beaumont & McEleavy 90, 112-113. But courts should not
create the need to confront whether (and if so when) the
Convention contemplates that undesirable scenario by
imposing rigid legal requirements or constructs on what
should be a quintessentially flexible and factual inquiry
25
under the Convention. That concern is particularly salient when, as here, a child has lived in only one country
from birth to the wrongful removal.
Petitioner’s suggestion (Pet. Br. 34-37) that an actual-agreement requirement would result in faster adjudications (when no such agreement exists) proves too
much, for any rigid legal requirement would have the
same effect. For instance, a requirement that a child
have lived in a place for at least one year—as sometimes
is required to establish domicile, see Martinez v.
Bynum, 461 U.S. 321, 327 n.6 (1983)—or that the parents own or have a long-term lease for their dwelling
also would result in rapid determinations in cases where
those factors are absent. Yet applying such rigid requirements would be contrary to the flexible and factbound inquiry the Convention requires. And petitioner’s speculation (Pet. Br. 37-42) that an actualagreement requirement would prevent forum-shopping
just as easily could support the opposite conclusion:
knowing that the lack of an agreement would per se preclude any finding of habitual residence, a would-be abductor could simply avoid affirmatively agreeing to anything and thereby evade the Convention’s reach.
Although the court of appeals here appeared to
recognize the factual nature of a habitual-residence
determination, see Pet. App. 3a, 8a-9a, it nevertheless
seemed to adhere to a binary view of considering either
the child’s acclimatization or the parent’s shared
intent—but not both, much less other considerations as
well. Id. at 7a-8a; see id. at 24a (Moore, J., dissenting)
(agreeing with that binary standard). As explained
above, that framework is incorrect; courts should consider all relevant evidence in all cases.
26
The Seventh Circuit’s decision in Redmond v. Redmond, 724 F.3d 729 (2013), illustrates the correct approach to determining habitual residence under the
Convention. There, the court refused to “overcomplicat[e] the issue of habitual residence with layers of rigid
doctrine,” and instead explained that, “in accordance
with ‘the ordinary and natural meaning of the two words
it contains,’ ” determining a child’s habitual residence
“requires an assessment of the observable facts on the
ground.” Id. at 742-743 (citation omitted). Redmond
rejected exclusive reliance on shared parental intent,
explaining that although such intent can be “an important factor in the analysis,” the “habitual-residence
inquiry remains a flexible one, sensitive to the unique
circumstances of the case and informed by common
sense.” Id. at 744. After reviewing various competing
approaches in the courts of appeals—some of which
focus on acclimatization, others of which focus on parental intent, see id. at 744-746—Redmond reiterated that
both parental intent and acclimatization can be relevant, but that ultimately any determination of a child’s
habitual residence must “remain[] essentially factbound, practical, and unencumbered with rigid rules,
formulas, or presumptions.” Id. at 746.
That approach is consistent with the ordinary meaning of habitual residence, the negotiation and drafting
history of the Convention, and the emerging case law
from other contracting states described above. Under
that approach, courts determining a child’s habitual residence should consider the full range of admissible evidence relevant to that determination. Such evidence potentially may include evidence of the parents’ intent
(such as an actual agreement, expressed intent to remain in the country, parental employment, the purchase
27
of a home or the signing of a long-term lease, moving
household belongings, establishing local bank accounts,
or applying for driver’s or professional licenses); the
child’s ties to the place (such as the length of residence,
the child’s language and assimilation, school or daycare
enrollment, or participation in social activities); and any
other relevant factors (such as immigration status, the
reasons the child was in the country, or the existence of
family and social networks), as they existed at the time
of the wrongful removal or retention. See generally,
e.g., Balev, [2018] 1 S.C.R. at 414, 421, 423; In re A, supra, ¶¶ 48, 55; Punter [2007] 1 NZLR at 61-62 (¶ 88);
Atkinson 654-657. Because the habitual-residence inquiry is factbound and flexible, the relative weight of
any given evidence will vary from case to case and ultimately would be a matter of discretion for the trial
court. Cf. Anderson v. Bessemer City, 470 U.S. 564, 574
(1985).
Importantly, the list above is intended to be illustrative, not mandatory or exhaustive; courts are free to
consider any admissible evidence relevant to answering
the ultimate factual inquiry: the location of the child’s
habitual residence. Conversely, the inquiry is not
boundless. For instance, setting aside extraordinary
circumstances (such as an infant born on an overseas
vacation), a child’s habitual residence likely cannot be in
a country in which he or she has never been physically
present. See Case C-393/18, UD v. XB, ¶ 53, ECLI:EU:
C:2018:835 (E.C.J. Oct. 17, 2018) (observing that under
the Convention’s implementing regulation for intraEuropean cases, habitual residence “may not be established in a Member State which the child has never been
to”); OL, supra, ¶ 35 (similar); Pet. App. 15a (Boggs, J.,
concurring) (similar). That conclusion flows from the
28
ordinary meaning of “habitual”; absent extraordinary
circumstances, an individual cannot have usually resided somewhere if he or she has never resided there.
In all cases, the touchstone is determining the location
of the child’s usual or customary dwelling or abode. See
Redmond, 724 F.3d at 746 (“In the final analysis, the
court’s focus must remain on ‘the child’s habitual residence.’ ”) (brackets and citation omitted); Balev, [2018]
1 S.C.R. at 421 (explaining that a court’s task is to “determine[] the focal point of the child’s life”). Courts
should consider any and all admissible evidence relevant to making that purely factual determination.
* * * * *
Although the court of appeals recognized that the inquiry into habitual residence “is one of fact,” Pet. App.
3a, and although both the district court and the court of
appeals correctly concluded that they could determine
A.M.T.’s habitual residence without requiring proof of a
subjective parental agreement, the district court made
its determination without engaging in the flexible and
factbound inquiry that the Convention requires. Instead, it appeared to focus on shared parental intent to
the exclusion of other considerations. See id. at 97a98a. This Court has repeatedly emphasized that it is a
“court of review, not of first view.” Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005); United States v. Stitt,
139 S. Ct. 399, 407 (2018) (citation omitted). Accordingly, the Court should vacate the judgment below and
remand the case so the lower courts have the opportunity to apply the correct legal standard to determine
A.M.T.’s habitual residence in the first instance.
29
II. APPELLATE COURTS SHOULD REVIEW DETERMINATIONS OF HABITUAL RESIDENCE FOR CLEAR ERROR
A district court’s determination of habitual residence
should be reviewed on appeal for clear error. Appellate
courts traditionally review legal determinations de novo
and factual determinations for clear error. See Pierce,
487 U.S. at 558. The ordinary meaning of the term habitual residence is quintessentially factual, and international case law likewise treats habitual residence as a
question of fact. See pp. 14-16, 19-23, supra. And as
explained above, the contracting states to the Convention deliberately chose habitual residence as the connecting factor precisely because they regarded it as a
question of pure fact. See pp. 16-19, supra. It follows
that a district court’s determination of habitual residence should be reviewed for clear error. See Pierce,
487 U.S. at 558.
That conclusion remains unchanged even if the question of habitual residence is viewed as a “mixed” question of law and fact. “A mixed question asks whether
‘the historical facts satisfy the statutory standard, or to
put it another way, whether the rule of law as applied to
the established facts is or is not violated.’ ” U.S. Bank,
138 S. Ct. at 966 (citation and ellipsis omitted). Because
“[m]ixed questions are not all alike,” the standard of review for a given mixed question depends “on whether
answering it entails primarily legal or factual work.” Id.
at 967.
For example, de novo review is appropriate “when
applying the law involves developing auxiliary legal
principles of use in other cases.” U.S. Bank, 138 S. Ct.
at 967. That is because of “appellate courts’ ‘institu-
30
tional advantages’ in giving legal guidance.” Ibid. (citation omitted). Conversely, questions requiring the district court “to marshal and weigh evidence, make credibility judgments, and otherwise address * * * ‘multifarious, fleeting, special, narrow facts that utterly resist
generalization,’ ” should be reviewed “with deference.”
Ibid. (citation omitted). The mixed question in U.S.
Bank was whether a certain transaction between two
persons had been conducted at arm’s length. Id. at 965.
This Court found that question “about as factual sounding as any mixed question gets” because a court answering it would “take[] a raft of case-specific historical
facts, consider[] them as a whole, balance[] them one
against another,” and ultimately “make a determination
that when two particular persons entered into a particular transaction, they were (or were not) acting like
strangers.” Id. at 968 (footnote omitted).
Like the question at issue in U.S. Bank, the question
of habitual residence also “entails primarily * * * factual work.” 138 S. Ct. at 967. It too requires a court to
consider many case-specific facts, see pp. 26-27, supra;
consider and balance all of them; and ultimately determine whether the child was (or was not) usually or customarily dwelling in a particular country at the time of
his or her wrongful removal. And as this case illustrates, district courts often will have to make credibility
judgments and address fleeting, special, and narrow
facts that are unique to each case. See, e.g., Pet. App.
103a-105a (finding petitioner’s account of domestic
abuse credible and respondent’s account not credible);
id. at 96a-97a (relying on petitioner’s “registering the
parties for an au pair” and “scheduling times for American family members to visit the parties in Italy months
in the future” as relevant evidence of parental intent).
31
To be sure, as petitioner points out (Pet. Br. 21), the
government previously has observed that “full appellate
review” can “promote national uniformity in the interpretation of the Convention.” Gov’t Br. at 28, Chafin v.
Chafin, 568 U.S. 165 (2013) (No. 11-1347). But that
statement was not made in reference to the appellate
standard of review. The question in Chafin was
whether an appeal from a return order under the Convention is rendered moot once the child has been returned; the government explained that if the answer
were yes, “the full course of appellate proceedings”
would occur only “in cases in which stays had been obtained or where return was denied.” Id. at 27. In context, therefore, the government’s observation in the
Chafin brief was not contrasting de novo appellate review with deferential review, but rather full appellate
review with no appellate review at all.
Deferential appellate review of habitual-residence
determinations also is consistent with the Convention’s
goals. As the New Zealand Court of Appeals observed,
“[i]f decisions are overturned too readily on appeal this
will undermine the summary nature of * * * decisions
under the Hague Convention,” which “are only as to
choice of forum and not decisions as to ultimate custody.” Punter [2007] 1 NZLR at 88 (¶ 204); see Convention art. 1 (explaining the Convention’s objective “to secure the prompt return of children”); cf. Chafin v.
Chafin, 568 U.S. 165, 179 (2013) (observing that granting stays pending appeal under too permissive a standard would create incentives for losing parents to appeal,
which “would undermine the goal of prompt return and
the best interests of children who should in fact be returned”).
32
Indeed, courts of other contracting states to the Convention agree that determinations of habitual residence
should be reviewed deferentially. The Supreme Court
of Canada, for instance, has said that “appellate courts
must defer to the application judge’s decision on a
child’s habitual residence, absent palpable and overriding error.” Balev, [2018] 1 S.C.R. at 419. Likewise, the
Supreme Court of the United Kingdom has noted “the
limited function of an appellate court” in reviewing “a
lower court’s finding as to habitual residence,” observing that such a finding “is not generally open to challenge” unless the lower court reached a conclusion that
“was not * * * reasonably open to it.” AR, supra, ¶ 18.
And the Hong Kong Court of Appeal of the High Court
has observed that determinations of habitual residence
“involve an assessment of a number of different factors
to be weighed against each other” and thus are “closely
analogous to the exercise of a discretion and the appeal
court should approach them in a similar way.” LCYP,
supra, ¶ 19. Adopting a deferential appellate standard
of review here thus would be in keeping with Congress’s
stated “need for uniform international interpretation of
the Convention,” 22 U.S.C. 9001(b)(3).
33
CONCLUSION
The judgment of the court of appeals should be
vacated and the case remanded.
Respectfully submitted.
MARIK A. STRING
Acting Legal Adviser
Department of State
AUGUST 2019
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
Attorneys
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