Monasky v. Taglieri: The (International) Case for a 'True' Hybrid Approach

Abstract

This Essay argues that U.S. courts should employ a “true” hybrid approach for determining the “habitual residence” of a child under the Hague Convention on the Civil Aspects of International Child Abduction. In light of the Court’s consideration of Monasky v. Taglieri, this Essay argues that the Court should not follow the Sixth Circuit’s approach in determining habitual residence. It does not, however, take a position on the question of whether an application of the “true” hybrid approach to the facts of Monasky would compel a reversal of the Sixth Circuit’s finding that the habitual residence of the child was Italy. Rather, this Essay focuses solely on what test for habitual residence the Supreme Court should adopt.

To do so, this Essay first considers the three standards that circuit courts use to determine “habitual residence”: the shared parental intent, child-centered acclimatization, and hybrid standards. It defends the “true” hybrid approach the Seventh Circuit adopts. Second, this Essay uses the judicial opinions of the European Union countries and the United Kingdom, which also adopt similar “true” hybrid approaches, to bolster its claim, as the U.S. Supreme Court heavily relies on, and even defers to, foreign law when interpreting the Convention.

Note: This piece was written before the U.S. Supreme Court's decision was published. In that decision, also published in February, the Court held that the test must be fact-specific and relied on foreign courts' understanding of the Convention's requirements.

Keywords: International, Law, Hybrid, Approach, Child, Abduction, Convention, Monasky, Taglieri, Supreme, Court

JEL Classification: K1, K19, K33, K37