Where Is the Child at Home? Determining Habitual Residence after Monasky

• Author: Ann Laquer Estin
• Pages: 127-140

127

Where Is the Child at Home?

Determining Habitual Residence After

Monasky

ANN LAQUER ESTIN*

Introduction

In Monasky v. Taglieri,1 the U.S. Supreme Court answered a question

that has troubled the federal circuits for almost 20 years: How should

a child’s habitual residence be determined for purposes of the Hague

Child Abduction Convention?2 The ruling in Monasky, the Court’s fourth

decision regarding the Abduction Convention,3

and announced an open-ended “totality of the circumstances” standard

for making this determination. Monasky shifts the balance away from the

focus on parental intentions that had become the majority rule, and should

change the approach to deciding habitual residence disputes in many

1. 140 S. Ct. 719 (2020).

2. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980,

T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 19 I.L.M. 1501–05 (1980) [hereinafter

Abduction Convention

See Status Table, 28: Convention of 25 October 1980 on the Civil Aspects of International Child

Abduction, HAGUE CONF. ON PRIV. INT’L L., (July 19, 2019), https://www.hcch.net/en/instruments/

conventions/status-table/?cid=24. Of those, the Convention was in force between the U.S. and 79

partner countries. See U.S. Hague Convention Treaty Partners, U.S. DEP’T OF STATE—BUREAU

OF CONSULAR AFFAIRS, https://travel.state.gov/content/travel/en/International-Parental-Child-

Abduction/abductions/hague-abduction-country-list.html (last visited Oct. 20, 2020).

     

Montoya Alvarez, 572 U.S. 1 (2014). See generally Ann Laquer Estin, The Hague Abduction

Convention and the United States Supreme Court, 48 FAM. L.Q. 235 (2014).

* Ann Laquer Estin is the Aliber Family Chair in Law at the University of Iowa. My thanks

to Bryony Whitaker for research assistance.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.