Habitual Residence: The Supreme Court Speaks

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Habitual Residence: The Supreme Court Speaks

By: Shannon M. Luschen / March 2020

 

 

For years, federal courts across the country have differed in defining the term “habitual residence” for purposes of Hague Convention child abduction cases – the first element which the left behind parent must prove when seeking to have the child returned to their home country. Some circuits, such as the 6th circuit, relied almost exclusively on the child’s experience and acclimatization to a place when determining where that child was habitually resident. See Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). Other circuits, such as the 9th circuit, relied more heavily on the parent’s shared intentions of where the habitual residence of a child is. See Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). Still other circuits, like the 7th circuit, took a hybrid approach to the two factors and looked at both the shared intentions of the parents and the child’s acclimatization to a place. See Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013). Clarifying these variations, the U.S. Supreme Court recently resolved the issue in Monasky v. Taglieri, on February 25, 2020 siding with the 7th Circuit.

 

FACTS
Monasky and Taglieri were married in the United States and later relocated to Italy. At that point, they had no plans to return to the United States. About a year after they moved, Monasky became pregnant. The marriage, however, began to crumble as Taglieri became physically abusive towards Monasky. Monasky considered moving to the United States; applied for some jobs and inquired about divorce with attorneys. At the same time, however, the parties were still making plans to raise their child in Italy who was born in 2014.

 

In 2015, Monasky eventually fled to the United States with the child. Taglieri first asked an Italian court to terminate Monasky’s parental rights, and, ex parte the mother’s rights were terminated. Taglieri then filed a Hague Convention petition to return the child to Italy on the grounds that Italy was her habitual residence. The District Court decided that since the child was too young to have acclimatized to her surroundings in the United States, it relied on the last shared intention of the parents - who had lived in Italy with the child. Thus, the child was ordered back to Italy to live with the father, Mr. Taglieri. The Sixth Circuit eventually affirmed the return.

 

ISSUES

  • When an infant is too young to acclimate to her surroundings, is a subjective agreement between the infant’s parents necessary to establish her habitual residence?
  • What is the proper standard of review of a District Court’s decision of habitual residence?

 

OPINION
The Supreme Court first considered the standard of habitual residence and whether an actual agreement between the parents on where to raise their child was a necessary element towards establishing an infant’s habitual residence. The Court stated that habitual residence is heavily fact-driven and should be determined by a totality of the circumstances. The courts should make a fact-driven inquiry that is “sensitive to the unique circumstances of the case and informed by common sense.” It held that “[t]here are no categorical requirements for establishing habitual residence – least of all an actual-agreement requirement for infants.” Although parental agreements are relevant in determining habitual residence, they are in no way dispositive across all cases.

 

The Court rejected Monasky’s arguments that an actual agreement was necessary for a finding of habitual residence. It stated that since there are a wide array of factors for courts to consider when determining habitual residence other than an actual agreement, this bright-line rule is unnecessary. It also rejected Monasky’s arguments that this requirement would protect young children from domestic violence because it would leave many children without a habitual residence and thus unprotected by the Hague Convention. The Court explained that domestic violence is an issue that should be more fully explored in the custody determinations after the child is returned. Further, the Hague Convention already provides protection from the problem of physical abuse in its Article 13(b) defenses which would prevent the return of the child based upon that defense.

 

For the second inquiry, the Court determined that the appropriate standard of review is clear-error review. This is based on the fact that the habitual residence inquiry is a mixed question of law (what is the appropriate standard for habitual residence?) and fact (was the child at home in the particular country at issue?).

 

The Supreme Court refused to disturb the decision to return the child to Italy and thus affirmed the 6th Circuit’s judgment. Ultimately, this decision now allows courts across the United States to better handle Hague Child Abduction Petitions with uniformity and fairness. The clarity of the standard upon which the determination should be made is set forth for every circuit to follow. Uniformity better serves the prime goal of the Hague Convention to allow quicker determinations and ultimately to resolve these most difficult matters.

 

Edited by Joy M. Feinberg, 2020

The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

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The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

By: Shannon Luschen / October 28, 2019

 

 

Beware: If you are married to someone who pays child support, your income now can be combined with your spouse’s income for purposes of calculating your spouse’s child support obligation. Illinois has ventured into new territory with In re Marriage of Rushing. In Rushing, the appellate court affirmed a trial court child support decision that calculated child support by combining the separate net incomes of the father and his current wife and then applying the somewhat new Illinois guidelines to this combined total.

 

Here are the facts: Mr. Rushing had not paid his reduced child support obligation of $200/mo from 2010 up through the time of trial in mid-2016. He was off to a bad start. Mr. Rushing claimed that the parties had agreed to terminate his child support entirely – something his former wife admitted. {This oral agreement was never entered as a written court order. Even the admission of the oral agreement by the ex-wife was insufficient to protect Mr. Rushing from having to pay the accumulated unpaid child support arrearage – consistent with long-held case law in this area.} He reported monthly expenses that far exceeded his monthly income – a scenario that requires an explanation or suggests an additional source of income from somewhere else, such as his current wife. Mr. Rushing’s current wife earned over $300,000 annually, enabling him to live well while ignoring the lifestyle of his children or their household. The court determined that the father had ample resources from which to pay his child support obligation, including his current wife’s income, in its calculations of child support. Mr. Rushing’s claim that he and his wife separated (albeit while living in the same home) was insufficient to change the inclusion of her income in this calculation; however, if there was an actual separation or divorce, Mr. Rushing was free to bring these matters to the attention of the court at the time such facts arose. See In re Marriage of Rushing, 2018 IL App (5th) 170146.

 

The old law: Traditionally, Illinois courts held that the financial status of a new spouse may not be considered when calculating a child support obligation. See In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (Ill. App. Ct. 1992). The long-standing justification for this rule was that new spouses are generally under no legal obligation to financially support their step-children. Illinois law even states that:

 

“[n]either husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and (except as herein otherwise provided) they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” 750 ILCS 65/5 (West 2014).

 

Despite this, courts have held that the financial status of a current spouse could still be considered when determining “whether payment of support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Deike, 381 Ill. App. 3d 620, 627 (2008). This notion of equity allowed for courts to consider how a new spouse’s income could “free-up” the support-paying spouse’s income to the extent that that spouse could then pay more of his or her own income as child support. Courts then use these equitable principles to deviate from child support guidelines after finding, among other things, that the child support paying party’s “resources and needs” warranted such a deviation. 750 ILCS 5/505(a)(2)(b) (West 2016). “Resources,” as applied here, has been long construed as a broad term that could encompass all of the money or property to which a parent has access, including a new spouse’s income or property. See In re Marriage of Drysch, “314 Ill. App. 3d 640, 644-45 (2000). Under this theory, the income of a new spouse can be considered when setting a child support obligation to the extent that it warrants a deviation from the guidelines that would have been applied against the spouse’s separate income for support purposes.

 

So long as equity requires it, courts may now require spouses to financially support their step-children to some extent. Spouses married to those paying child support need to be wary of this trend.