International Custody Case Goes to the Supreme Court

The Hague Convention is an international treaty that applies to custody cases in Florida in which there are allegations of abduction by one of the parents. According to the terms of the treaty, the country of the child’s habitual residence is the jurisdiction in which custody hearings must take place. The purpose of this “automatic return” rule is to prevent a parent from attempting to get more favorable custody arrangements by taking a child to another country where different family laws apply.

The Supreme Court of the United States is currently deliberating a case that could determine how the Hague Convention applies in certain circumstances to determine the country of a child’s habitual residence. The case concerns an American woman who married an Italian man in 2011. They initially lived in the United States but moved to Italy in 2013 when the man had difficulty finding work in the United States.

The woman became pregnant and gave birth to a daughter in 2015. She asserts that her husband became abusive towards her during the intervening years and that she made the decision to divorce him and return to the United States prior to giving birth. However, health complications prevented her from traveling while pregnant.

Following the birth of her daughter, the woman took her to a home for victims of domestic violence in Italy, where they stayed for several weeks. As soon as she obtained a passport for her newborn daughter, she took the baby to the United States.

The father convinced an Ohio court to return the baby to Italy by filing a Hague Convention petition, which the court granted. The mother appealed the decision, but lower courts found that, despite only living there for a matter of months, Italy was the child’s country of habitual residence. The brief that the mother filed with the Supreme Court argues that the appeals court should have examined both the facts of the case and the law instead of applying a clear error standard.

The expectation is that the Supreme Court will issue a decision by late June, at which point the child will be 5 years old. Parents involved in an international child custody dispute to which the Hague Convention may apply may wish to speak with an attorney experienced in such matters.