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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It's rare the

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Speaker 1: Supreme Court. Here's child custody disputes, and the Justice is

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Speaker 1: struggled with the issue at the heart of an international

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Speaker 1: custody battle. The residence of a child is key in

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Speaker 1: determining what countries law governs custody under the Hague Convention.

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Speaker 1: So how should courts determine the habitual residence of a

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Speaker 1: child in the middle of a custody battle. Here are

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Speaker 1: Justices Stephen Bryer and Samuel Alito and Chief Justice John

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Speaker 1: Roberts questioning the standard during oral arguments, and as soon

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Speaker 1: as nine people who know free speaking for myself, know

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Speaker 1: very little about this start laying down black letters standards.

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Speaker 1: All we're gonna do is maybe help people in some

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Speaker 1: cases and just cause chaos and hardship in others. So

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Speaker 1: either parent at that time could snatch her and possession

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Speaker 1: would be ten tenths of the law right, it should

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Speaker 1: have a meaningless concept where the child usually lives. If

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Speaker 1: you're talking about somebody's eight weeks old, again, it's not

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Speaker 1: as if they've laid down roots. That's year. Eight week

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Speaker 1: old infants don't have habits. Well other than one or

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Speaker 1: two joining me is Steve Sanders, a professor at Indiana

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Speaker 1: University's Moral School of Law. Steve some complicated international law

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Speaker 1: issues here. Tell us about the key issue. Well, the

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Speaker 1: United States is a signatory to something called the Hate

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Speaker 1: Convention on the Civil Aspects of International Child Abduction. And

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Speaker 1: the Hate Convention requires that when a child is wrongfully

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Speaker 1: removed from a particular country, a court has to determine

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Speaker 1: what is the child's quote unquote habitual country of residents,

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Speaker 1: so that at country's courts can make the child custody determination. So,

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Speaker 1: in this case, because a treaty that the United States

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Speaker 1: has signed becomes part of federal law, the U. S.

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Speaker 1: Courts now that ultimately the Supreme Court need to decide

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Speaker 1: what does it mean to determine the habitual residence of

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Speaker 1: a child when that child is an infant and they

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Speaker 1: have been removed from their country of birth. So the

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Speaker 1: standard that U. S. Courts use when there's child custody

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Speaker 1: is best interests of the child. Normally, that doesn't apply

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Speaker 1: at all in these international cases. No, it doesn't, because actually,

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Speaker 1: even in US domestic law there is a parallel principle.

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Speaker 1: The best interest of the child standard is used when

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Speaker 1: basically you have two different parents who are fit and

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Speaker 1: accord needs to decide between the two of them. But

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Speaker 1: there is also law in the United States that is

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Speaker 1: intended to discourage a parent from essentially kidnapping the child

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Speaker 1: and taking them to another state when they get a

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Speaker 1: child custody determination that they don't like, and the Hate

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Speaker 1: Convention essentially mirrors that principle on the international level. It's

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Speaker 1: intended to attack the potential problem of a parent abducting

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Speaker 1: their own child and taking that child to a different

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Speaker 1: country because back in the first country a child custody

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Speaker 1: determination went against the parent, and so they want to

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Speaker 1: try their hand at getting a different jurisdiction to render

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Speaker 1: a different child custody determination. Before we get to the

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Speaker 1: Supreme Court, arguments, tell us what happened below with the

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Speaker 1: district court and the circuit court levels. Sure, well, this

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Speaker 1: case involves a couple of U. S citizen Michellemneski and

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Speaker 1: an Italian citizen, Domenico Taglieri. They were married in the

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Speaker 1: United States and then moved to Italy and had a child.

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Speaker 1: In Italy, Michelle claims that Domenico was abusive and that

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Speaker 1: she was fleeing domestic violence, and she ultimately returned to

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Speaker 1: the United States with the child. Domenico's attorneys filed a

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Speaker 1: case in federal court, saying that the child had been

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Speaker 1: wrongfully removed from Italy, that Italy should be considered the

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Speaker 1: child's quote unquote habitual residence. The United States courts, a

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Speaker 1: federal district court and then the Sixth Circuit Court of Appeals,

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Speaker 1: which covers Ohio, which is where Michelle is both ruled

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Speaker 1: that in this case the child had to be returned

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Speaker 1: to Italy under the Hade convention that Italy had been

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Speaker 1: the child's habitual residence. So what was the mother's argument

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Speaker 1: of the Supreme Court? So first, I think no one

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Speaker 1: disputes the principle that in general, once again, you don't

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Speaker 1: want to incentivize parents who get an unfavorable custody determination

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Speaker 1: to abduct their own child and take them to another jurisdiction.

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Speaker 1: But in this case, the mother is saying, this is

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Speaker 1: a different situation. I was fleeing domestic violence. The child

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Speaker 1: is potentially at risk in Italy, and so that standard

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Speaker 1: of what is a bitual residence of the child needs

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Speaker 1: to make some accommodation, needs to recognize the possibility that

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Speaker 1: even if, in this case, say Italy was the child's

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Speaker 1: appropriate residence, there may be cases when the child for

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Speaker 1: its own safety needs to be taken elsewhere. Although her

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Speaker 1: attorneys are also saying that because the child was only

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Speaker 1: eight weeks old and because the parents had not come

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Speaker 1: to some kind of agreement about where the child would

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Speaker 1: be raised in this situation, the mother's attorneys argue the

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Speaker 1: child essentially could not be said to have even had

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Speaker 1: a habitual country of residents, and so there was nothing

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Speaker 1: wrong with the child being taken to the United States.

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Speaker 1: So what were the concerns of the justices? I think

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Speaker 1: that the justices are searching for a clear standard, They're

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Speaker 1: searching for a rule. This isn't a case where there

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Speaker 1: was a circuit split that the court had to resolve,

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Speaker 1: but it's an important question of federal law, and an

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Speaker 1: international treaty is involved, and you can imagine him that

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Speaker 1: in this very mobile age. This is going to come

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Speaker 1: up when children and parents cross international boundaries, and so

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Speaker 1: I think the Court was primarily concerned to have some

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Speaker 1: sort of role that it can apply, that lower courts

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Speaker 1: can apply in these sorts of situations, so that it

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Speaker 1: doesn't just become a determination of which parent presents the

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Speaker 1: more sympathetic case. I think commentators who watched the oral

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Speaker 1: arguments in this case believe the court maybe leaning towards

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Speaker 1: the father's side. That is the argument that the child

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Speaker 1: needs to be in Italy, that that is where the

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Speaker 1: courts should make a child custody determination. But it's not

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Speaker 1: necessarily completely clear from the oral arguments how the court

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Speaker 1: may rule in this case. So Justice Samuel Alito seems

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Speaker 1: skeptical of the mother's arguments. He said, under that position,

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Speaker 1: either parent could snatch her possession would be tense of

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Speaker 1: the law. Well, exactly. Again, I think that just simply

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Speaker 1: gets back to the principle that the whole point of

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Speaker 1: this Hague Convention, just as the point of federal law

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Speaker 1: that governs this kind of situation among states in the

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Speaker 1: United States, is that we don't want parents engaging and kidnapping.

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Speaker 1: We don't want a parent to be able to say,

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Speaker 1: because I now have physical control of the child, that

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Speaker 1: child's custody should be determined by whatever state or whatever

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Speaker 1: country I end up in. There is supposed to be

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Speaker 1: a standard for determining which country that is in order

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Speaker 1: to deter this kind of child snatching, which is what

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Speaker 1: the father says was involved. It seemed that Justice Ruth

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Speaker 1: Bader Ginsburg was concerned about the mother's allegations of abuse.

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Speaker 1: Were any of the other justices. Well, the Hague Convention

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Speaker 1: actually does have essentially a provision, or you might think

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Speaker 1: of it as a loophole that says, um, you know,

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Speaker 1: this habitual country of residence standard may not necessarily apply

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Speaker 1: in a situation where proof has been presented that the

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Speaker 1: child would be in a potentially dangerous situation. The lower

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Speaker 1: federal courts in this case actually found that the mother

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Speaker 1: had not met her burden to invoke that particular exit

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Speaker 1: or that particular loophole from the Hague Convention. The mother

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Speaker 1: has said that she was the victim of domestic abuse,

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Speaker 1: but the lower court said she had not met her

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Speaker 1: burden to show that the child would be in danger.

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Speaker 1: In fact, the child has been in Italy during the

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Speaker 1: pendency of this litigation for some four years now, because

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Speaker 1: the lower federal court decisions required the child to be

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Speaker 1: returned to Italy pending the outcome of this litigation, and

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Speaker 1: there was nothing presented at the oral argument that indicated

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Speaker 1: that during this time that the child has lived with

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Speaker 1: its father, that the child has been abused or endangered.

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Speaker 1: Did Justice Elena Kagan come up with a theory that

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Speaker 1: had been used by the Six Circuit. But Justice Kagan

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Speaker 1: basically said that courts would normally presume that a baby's

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Speaker 1: habitual residence would be the country in which she has lived,

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Speaker 1: in which case that would be Italy. The mother's attorneys

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Speaker 1: pushed back on that idea, I think, because again they thought,

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Speaker 1: that doesn't leave room for the possibility that there may

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Speaker 1: be reasons why the parents didn't intend to raise the

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Speaker 1: child in that country, or extenuating circumstances that would require

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Speaker 1: the child to be removed from that country. Accord in

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Speaker 1: some senses looking for a rule that makes sense and

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Speaker 1: can be administered by lower courts, but yet is not

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Speaker 1: a rule that is not insensitive to the particular circumstances

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Speaker 1: of particular cases. So can there be some kind of

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Speaker 1: a midway position? For the court or are they going

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Speaker 1: to have to, you know, just come down with a

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Speaker 1: rule and leave it at that. I mean, is there

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Speaker 1: any kind of gray area here where they could rule

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Speaker 1: in this case but not make a blank at rule.

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Speaker 1: One thing the court could do is to send is

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Speaker 1: to remand the case back to the federal courts in

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Speaker 1: Ohio and tell them to apply a different standard. Um. Uh.

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Speaker 1: The mother's attorneys are arguing that these sorts of determinations

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Speaker 1: should be reviewed by by appellate courts donovo, rather than

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Speaker 1: giving deference to the district courts factual determinations. Um. The

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Speaker 1: Court will probably reject that idea, because where a child's

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Speaker 1: country of habitual residence is really is a fact question?

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Speaker 1: Is a factual determination? Um? The Court often surprises us,

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Speaker 1: but I think the Court probably would not have taken

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Speaker 1: this case if it didn't feel an obligation to provide

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Speaker 1: some clarity, some administrable rule for lower courts to follow

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Speaker 1: going forward in cases like this. Finally, does this come

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Speaker 1: up often because you have a Supreme Court taking this case?

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Speaker 1: Is this an issue that comes up often international child

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Speaker 1: custody disputes? Well, again, you know, if if you look

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Speaker 1: around the web, there are law firms that specialize in

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Speaker 1: helping parents with these sorts of situations. I don't know

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Speaker 1: that um, there are any statistics about how often this

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Speaker 1: kind of thing happens. But once again, this case involved

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Speaker 1: a US citizen marrying an Italian citizen, and they get

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Speaker 1: married here, then they moved to Italy. You can imagine

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Speaker 1: in the world today that is not an uncommon situation

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Speaker 1: that parents, because of career interests and educational interests and

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Speaker 1: family interests, move around not just from state to state,

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Speaker 1: but from country to country. And so UM, just as

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Speaker 1: there are plenty of child custody interstate battles in the

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Speaker 1: United States, you know, one can imagine that's not unusual

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Speaker 1: that this kind of thing happens. And and again I

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Speaker 1: think the court a circuit split was not an issue here,

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Speaker 1: But that's not the only way to get the court's attention.

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Speaker 1: When there's a significant question of federal law that the

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Speaker 1: court believes is not just an unusual circumstance but may

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Speaker 1: come up again in the future often enough to require

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Speaker 1: a rule, then the court will take it. And so

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Speaker 1: I think we have to assume the court thinks that

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Speaker 1: this is something that UM is a live issue that

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Speaker 1: potentially uh courts in the United States will confront on

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Speaker 1: a regular basis. Thanks Steve. That's Steve Sanders, a professor

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Speaker 1: at Indiana University's Morris School of Law. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg

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Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg