We are, obviously, disappointed in the outcome of the Supreme Court case Monasky v. Taglieri, especially for its impact upon Michelle Monasky and her daughter. Like all matters before the Supreme Court, however, this case had, and has, implications bigger than the impact on the particular litigants. While our involvement in this case has always been about achieving justice for our client and her daughter, it highlighted the then-fractured nature of US Habitual Residence jurisprudence and the impact of domestic violence in 1980 Hague Convention cases.
The Supreme Court of the United States adopted a new unifying standard for Habitual Residence, not just for infants and children unable to acclimate, but for determining Habitual Residence writ large. This seminal decision—on what is effectively the central provision of the 1980 Hague Convention (Habitual Residence)—renders many prior controlling decisions obsolete. While the Court was unwilling to adopt an actual-agreement requirement to protect survivors of domestic violence, it did state that a child’s presence in a country due to parental coercion “should figure into the calculus.” The Supreme Court further suggested that the “grave risk” exception remains “a mechanism for guarding children from the harms of domestic violence,” even if the Court was unprepared to address whether violence against a parent alone, but not specifically directed at the child, would constitute a grave risk of harm.
Despite the positive effects of a now-unified Habitual Residence standard, we remain concerned about the practical impact of the Court’s adoption of a purely fact-based Habitual Residence standard and a “clear error” standard of review. This pronouncement, and the Court’s apparent trade off of expediency over other considerations, makes more probable situations wherein cases being decided on similar facts have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm and is especially pernicious when the well-being of children is at stake.