WEBVTT - Justices Struggle With International Child Custody 0:00:03.520 --> 0:00:07.040 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.120 --> 0:00:09.680 day we bring you insight and analysis into the most 0:00:09.720 --> 0:00:12.200 important legal news of the day. You can find more 0:00:12.240 --> 0:00:16.160 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:16.280 --> 0:00:20.079 and on Bloomberg dot com slash podcasts. It's rare the 0:00:20.120 --> 0:00:24.079 Supreme Court. Here's child custody disputes, and the Justice is 0:00:24.200 --> 0:00:26.880 struggled with the issue at the heart of an international 0:00:26.960 --> 0:00:29.960 custody battle. The residence of a child is key in 0:00:30.040 --> 0:00:33.760 determining what countries law governs custody under the Hague Convention. 0:00:34.120 --> 0:00:36.879 So how should courts determine the habitual residence of a 0:00:36.960 --> 0:00:39.800 child in the middle of a custody battle. Here are 0:00:39.880 --> 0:00:43.680 Justices Stephen Bryer and Samuel Alito and Chief Justice John 0:00:43.800 --> 0:00:47.440 Roberts questioning the standard during oral arguments, and as soon 0:00:47.479 --> 0:00:50.600 as nine people who know free speaking for myself, know 0:00:51.000 --> 0:00:55.720 very little about this start laying down black letters standards. 0:00:56.080 --> 0:00:58.280 All we're gonna do is maybe help people in some 0:00:58.360 --> 0:01:03.520 cases and just cause chaos and hardship in others. So 0:01:03.680 --> 0:01:07.839 either parent at that time could snatch her and possession 0:01:07.880 --> 0:01:11.760 would be ten tenths of the law right, it should 0:01:11.800 --> 0:01:14.760 have a meaningless concept where the child usually lives. If 0:01:14.760 --> 0:01:18.360 you're talking about somebody's eight weeks old, again, it's not 0:01:18.440 --> 0:01:21.880 as if they've laid down roots. That's year. Eight week 0:01:21.880 --> 0:01:25.600 old infants don't have habits. Well other than one or 0:01:25.640 --> 0:01:29.680 two joining me is Steve Sanders, a professor at Indiana 0:01:29.800 --> 0:01:34.119 University's Moral School of Law. Steve some complicated international law 0:01:34.280 --> 0:01:37.400 issues here. Tell us about the key issue. Well, the 0:01:37.560 --> 0:01:40.800 United States is a signatory to something called the Hate 0:01:40.840 --> 0:01:45.480 Convention on the Civil Aspects of International Child Abduction. And 0:01:45.800 --> 0:01:50.640 the Hate Convention requires that when a child is wrongfully 0:01:50.760 --> 0:01:54.760 removed from a particular country, a court has to determine 0:01:54.840 --> 0:01:58.920 what is the child's quote unquote habitual country of residents, 0:01:59.400 --> 0:02:03.800 so that at country's courts can make the child custody determination. So, 0:02:04.320 --> 0:02:07.600 in this case, because a treaty that the United States 0:02:07.680 --> 0:02:11.359 has signed becomes part of federal law, the U. S. 0:02:11.480 --> 0:02:14.760 Courts now that ultimately the Supreme Court need to decide 0:02:15.280 --> 0:02:18.160 what does it mean to determine the habitual residence of 0:02:18.240 --> 0:02:21.080 a child when that child is an infant and they 0:02:21.160 --> 0:02:24.679 have been removed from their country of birth. So the 0:02:24.800 --> 0:02:28.440 standard that U. S. Courts use when there's child custody 0:02:28.560 --> 0:02:31.760 is best interests of the child. Normally, that doesn't apply 0:02:31.880 --> 0:02:35.880 at all in these international cases. No, it doesn't, because actually, 0:02:36.000 --> 0:02:40.000 even in US domestic law there is a parallel principle. 0:02:40.639 --> 0:02:43.320 The best interest of the child standard is used when 0:02:43.480 --> 0:02:46.600 basically you have two different parents who are fit and 0:02:46.680 --> 0:02:49.359 accord needs to decide between the two of them. But 0:02:49.480 --> 0:02:52.160 there is also law in the United States that is 0:02:52.360 --> 0:02:56.519 intended to discourage a parent from essentially kidnapping the child 0:02:56.680 --> 0:02:59.440 and taking them to another state when they get a 0:02:59.560 --> 0:03:03.240 child custody determination that they don't like, and the Hate 0:03:03.240 --> 0:03:08.000 Convention essentially mirrors that principle on the international level. It's 0:03:08.040 --> 0:03:12.320 intended to attack the potential problem of a parent abducting 0:03:12.440 --> 0:03:15.320 their own child and taking that child to a different 0:03:15.400 --> 0:03:19.960 country because back in the first country a child custody 0:03:20.000 --> 0:03:22.840 determination went against the parent, and so they want to 0:03:22.880 --> 0:03:25.959 try their hand at getting a different jurisdiction to render 0:03:26.000 --> 0:03:29.280 a different child custody determination. Before we get to the 0:03:29.320 --> 0:03:33.120 Supreme Court, arguments, tell us what happened below with the 0:03:33.240 --> 0:03:37.040 district court and the circuit court levels. Sure, well, this 0:03:37.240 --> 0:03:41.320 case involves a couple of U. S citizen Michellemneski and 0:03:41.400 --> 0:03:45.400 an Italian citizen, Domenico Taglieri. They were married in the 0:03:45.480 --> 0:03:48.520 United States and then moved to Italy and had a child. 0:03:48.800 --> 0:03:53.560 In Italy, Michelle claims that Domenico was abusive and that 0:03:53.720 --> 0:03:57.840 she was fleeing domestic violence, and she ultimately returned to 0:03:57.920 --> 0:04:02.440 the United States with the child. Domenico's attorneys filed a 0:04:02.520 --> 0:04:05.040 case in federal court, saying that the child had been 0:04:05.120 --> 0:04:08.640 wrongfully removed from Italy, that Italy should be considered the 0:04:08.760 --> 0:04:13.800 child's quote unquote habitual residence. The United States courts, a 0:04:13.880 --> 0:04:17.200 federal district court and then the Sixth Circuit Court of Appeals, 0:04:17.279 --> 0:04:21.279 which covers Ohio, which is where Michelle is both ruled 0:04:21.320 --> 0:04:23.479 that in this case the child had to be returned 0:04:23.520 --> 0:04:26.920 to Italy under the Hade convention that Italy had been 0:04:27.000 --> 0:04:31.159 the child's habitual residence. So what was the mother's argument 0:04:31.200 --> 0:04:34.320 of the Supreme Court? So first, I think no one 0:04:34.440 --> 0:04:38.159 disputes the principle that in general, once again, you don't 0:04:38.240 --> 0:04:43.720 want to incentivize parents who get an unfavorable custody determination 0:04:43.880 --> 0:04:46.960 to abduct their own child and take them to another jurisdiction. 0:04:47.040 --> 0:04:49.840 But in this case, the mother is saying, this is 0:04:49.880 --> 0:04:53.800 a different situation. I was fleeing domestic violence. The child 0:04:54.000 --> 0:04:58.960 is potentially at risk in Italy, and so that standard 0:04:59.040 --> 0:05:02.080 of what is a bitual residence of the child needs 0:05:02.160 --> 0:05:06.480 to make some accommodation, needs to recognize the possibility that 0:05:06.720 --> 0:05:09.520 even if, in this case, say Italy was the child's 0:05:09.560 --> 0:05:13.080 appropriate residence, there may be cases when the child for 0:05:13.400 --> 0:05:16.640 its own safety needs to be taken elsewhere. Although her 0:05:16.680 --> 0:05:20.400 attorneys are also saying that because the child was only 0:05:20.560 --> 0:05:24.120 eight weeks old and because the parents had not come 0:05:24.240 --> 0:05:27.360 to some kind of agreement about where the child would 0:05:27.400 --> 0:05:31.480 be raised in this situation, the mother's attorneys argue the 0:05:31.560 --> 0:05:34.280 child essentially could not be said to have even had 0:05:34.360 --> 0:05:37.680 a habitual country of residents, and so there was nothing 0:05:37.760 --> 0:05:40.240 wrong with the child being taken to the United States. 0:05:40.640 --> 0:05:45.200 So what were the concerns of the justices? I think 0:05:45.240 --> 0:05:48.520 that the justices are searching for a clear standard, They're 0:05:48.520 --> 0:05:51.280 searching for a rule. This isn't a case where there 0:05:51.440 --> 0:05:54.000 was a circuit split that the court had to resolve, 0:05:54.160 --> 0:05:56.880 but it's an important question of federal law, and an 0:05:56.920 --> 0:06:00.200 international treaty is involved, and you can imagine him that 0:06:00.440 --> 0:06:03.200 in this very mobile age. This is going to come 0:06:03.320 --> 0:06:08.280 up when children and parents cross international boundaries, and so 0:06:08.760 --> 0:06:12.080 I think the Court was primarily concerned to have some 0:06:12.440 --> 0:06:16.200 sort of role that it can apply, that lower courts 0:06:16.240 --> 0:06:19.280 can apply in these sorts of situations, so that it 0:06:19.560 --> 0:06:23.680 doesn't just become a determination of which parent presents the 0:06:23.760 --> 0:06:28.160 more sympathetic case. I think commentators who watched the oral 0:06:28.279 --> 0:06:32.240 arguments in this case believe the court maybe leaning towards 0:06:32.279 --> 0:06:35.080 the father's side. That is the argument that the child 0:06:35.400 --> 0:06:38.040 needs to be in Italy, that that is where the 0:06:38.200 --> 0:06:42.480 courts should make a child custody determination. But it's not 0:06:42.640 --> 0:06:46.440 necessarily completely clear from the oral arguments how the court 0:06:46.520 --> 0:06:50.880 may rule in this case. So Justice Samuel Alito seems 0:06:50.920 --> 0:06:55.200 skeptical of the mother's arguments. He said, under that position, 0:06:55.320 --> 0:06:59.200 either parent could snatch her possession would be tense of 0:06:59.279 --> 0:07:02.119 the law. Well, exactly. Again, I think that just simply 0:07:02.160 --> 0:07:04.880 gets back to the principle that the whole point of 0:07:05.000 --> 0:07:08.560 this Hague Convention, just as the point of federal law 0:07:08.640 --> 0:07:11.240 that governs this kind of situation among states in the 0:07:11.320 --> 0:07:14.880 United States, is that we don't want parents engaging and kidnapping. 0:07:14.960 --> 0:07:16.440 We don't want a parent to be able to say, 0:07:16.960 --> 0:07:20.920 because I now have physical control of the child, that 0:07:21.160 --> 0:07:25.119 child's custody should be determined by whatever state or whatever 0:07:25.240 --> 0:07:28.200 country I end up in. There is supposed to be 0:07:28.320 --> 0:07:32.040 a standard for determining which country that is in order 0:07:32.120 --> 0:07:35.200 to deter this kind of child snatching, which is what 0:07:35.360 --> 0:07:39.600 the father says was involved. It seemed that Justice Ruth 0:07:39.640 --> 0:07:44.440 Bader Ginsburg was concerned about the mother's allegations of abuse. 0:07:45.040 --> 0:07:48.520 Were any of the other justices. Well, the Hague Convention 0:07:48.600 --> 0:07:52.840 actually does have essentially a provision, or you might think 0:07:52.840 --> 0:07:55.360 of it as a loophole that says, um, you know, 0:07:55.600 --> 0:07:59.880 this habitual country of residence standard may not necessarily apply 0:08:00.640 --> 0:08:03.400 in a situation where proof has been presented that the 0:08:03.520 --> 0:08:07.160 child would be in a potentially dangerous situation. The lower 0:08:07.240 --> 0:08:09.920 federal courts in this case actually found that the mother 0:08:10.040 --> 0:08:14.480 had not met her burden to invoke that particular exit 0:08:14.600 --> 0:08:17.960 or that particular loophole from the Hague Convention. The mother 0:08:18.040 --> 0:08:21.800 has said that she was the victim of domestic abuse, 0:08:22.320 --> 0:08:24.640 but the lower court said she had not met her 0:08:24.720 --> 0:08:27.000 burden to show that the child would be in danger. 0:08:27.080 --> 0:08:30.240 In fact, the child has been in Italy during the 0:08:30.400 --> 0:08:34.240 pendency of this litigation for some four years now, because 0:08:34.320 --> 0:08:37.079 the lower federal court decisions required the child to be 0:08:37.200 --> 0:08:40.280 returned to Italy pending the outcome of this litigation, and 0:08:40.800 --> 0:08:43.640 there was nothing presented at the oral argument that indicated 0:08:43.679 --> 0:08:46.400 that during this time that the child has lived with 0:08:46.600 --> 0:08:50.440 its father, that the child has been abused or endangered. 0:08:51.080 --> 0:08:54.480 Did Justice Elena Kagan come up with a theory that 0:08:54.559 --> 0:08:57.640 had been used by the Six Circuit. But Justice Kagan 0:08:57.720 --> 0:09:01.240 basically said that courts would normally presume that a baby's 0:09:01.280 --> 0:09:04.920 habitual residence would be the country in which she has lived, 0:09:05.000 --> 0:09:09.160 in which case that would be Italy. The mother's attorneys 0:09:09.240 --> 0:09:12.080 pushed back on that idea, I think, because again they thought, 0:09:12.480 --> 0:09:16.319 that doesn't leave room for the possibility that there may 0:09:16.400 --> 0:09:20.240 be reasons why the parents didn't intend to raise the 0:09:20.360 --> 0:09:24.200 child in that country, or extenuating circumstances that would require 0:09:24.240 --> 0:09:27.480 the child to be removed from that country. Accord in 0:09:27.559 --> 0:09:31.079 some senses looking for a rule that makes sense and 0:09:31.400 --> 0:09:35.040 can be administered by lower courts, but yet is not 0:09:35.400 --> 0:09:39.479 a rule that is not insensitive to the particular circumstances 0:09:39.520 --> 0:09:43.920 of particular cases. So can there be some kind of 0:09:44.040 --> 0:09:47.360 a midway position? For the court or are they going 0:09:47.440 --> 0:09:50.559 to have to, you know, just come down with a 0:09:50.679 --> 0:09:53.679 rule and leave it at that. I mean, is there 0:09:53.720 --> 0:09:57.720 any kind of gray area here where they could rule 0:09:58.040 --> 0:10:00.680 in this case but not make a blank at rule. 0:10:02.240 --> 0:10:04.520 One thing the court could do is to send is 0:10:04.640 --> 0:10:07.520 to remand the case back to the federal courts in 0:10:07.600 --> 0:10:13.000 Ohio and tell them to apply a different standard. Um. Uh. 0:10:13.400 --> 0:10:18.160 The mother's attorneys are arguing that these sorts of determinations 0:10:18.160 --> 0:10:21.720 should be reviewed by by appellate courts donovo, rather than 0:10:21.800 --> 0:10:26.040 giving deference to the district courts factual determinations. Um. The 0:10:26.160 --> 0:10:30.560 Court will probably reject that idea, because where a child's 0:10:30.880 --> 0:10:34.040 country of habitual residence is really is a fact question? 0:10:34.320 --> 0:10:39.200 Is a factual determination? Um? The Court often surprises us, 0:10:39.240 --> 0:10:41.960 but I think the Court probably would not have taken 0:10:42.040 --> 0:10:45.200 this case if it didn't feel an obligation to provide 0:10:45.720 --> 0:10:50.160 some clarity, some administrable rule for lower courts to follow 0:10:50.240 --> 0:10:55.120 going forward in cases like this. Finally, does this come 0:10:55.200 --> 0:10:58.280 up often because you have a Supreme Court taking this case? 0:10:59.040 --> 0:11:01.840 Is this an issue that comes up often international child 0:11:01.920 --> 0:11:05.480 custody disputes? Well, again, you know, if if you look 0:11:05.520 --> 0:11:08.319 around the web, there are law firms that specialize in 0:11:08.440 --> 0:11:10.880 helping parents with these sorts of situations. I don't know 0:11:11.080 --> 0:11:14.480 that um, there are any statistics about how often this 0:11:14.679 --> 0:11:17.880 kind of thing happens. But once again, this case involved 0:11:17.960 --> 0:11:21.520 a US citizen marrying an Italian citizen, and they get 0:11:21.600 --> 0:11:24.000 married here, then they moved to Italy. You can imagine 0:11:24.040 --> 0:11:27.040 in the world today that is not an uncommon situation 0:11:27.200 --> 0:11:31.520 that parents, because of career interests and educational interests and 0:11:31.720 --> 0:11:35.040 family interests, move around not just from state to state, 0:11:35.080 --> 0:11:38.160 but from country to country. And so UM, just as 0:11:38.240 --> 0:11:42.000 there are plenty of child custody interstate battles in the 0:11:42.080 --> 0:11:45.560 United States, you know, one can imagine that's not unusual 0:11:45.679 --> 0:11:48.240 that this kind of thing happens. And and again I 0:11:48.320 --> 0:11:52.320 think the court a circuit split was not an issue here, 0:11:52.360 --> 0:11:54.680 But that's not the only way to get the court's attention. 0:11:54.760 --> 0:11:57.520 When there's a significant question of federal law that the 0:11:57.640 --> 0:12:01.679 court believes is not just an unusual circumstance but may 0:12:01.800 --> 0:12:05.839 come up again in the future often enough to require 0:12:06.000 --> 0:12:08.160 a rule, then the court will take it. And so 0:12:08.320 --> 0:12:10.240 I think we have to assume the court thinks that 0:12:10.840 --> 0:12:15.240 this is something that UM is a live issue that 0:12:15.400 --> 0:12:19.719 potentially uh courts in the United States will confront on 0:12:19.760 --> 0:12:23.800 a regular basis. Thanks Steve. That's Steve Sanders, a professor 0:12:23.840 --> 0:12:28.959 at Indiana University's Morris School of Law. Thanks for listening 0:12:29.000 --> 0:12:32.240 to the Bloomberg Law Podcast. You can subscribe and listen 0:12:32.320 --> 0:12:35.840 to the show on Apple Podcasts, SoundCloud, and on bloomberg 0:12:35.960 --> 0:12:40.640 dot com slash podcast. I'm June Brasso. This is Bloomberg