Monasky’s Totality of Circumstances Is Vague – The Child’s Perspective Should Be the Main Test

Authors

Sabrina Salvi

Abstract

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight states and one regional organization, provides that children must be returned to their habitual residence in the event of being wrongfully removed or retained in a foreign country by one of their parents, Courts struggle with the difficult task of determining a child’s habitual residence.

Recommended Citation

Salvi, Sabrina (2022) "Monasky’s Totality of Circumstances Is Vague – The Child’s Perspective Should Be the Main Test," Touro Law Review: Vol. 38: No. 2, Article 9.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol38/iss2/9