On February 25, 2020 the Supreme Court held that a child’s habitual residence depends on a totality of circumstances specific to the case, not on categorical requirements such as an actual agreement between parents.
This decision follows the International Child Abduction Remedies Act implemented by The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) in 1980 to address international child abductions relating to domestic disputes. The US and Italy are among 101 signatory countries to the Convention. The Act states that a child removed from their country of “habitual residence” must be returned to that country if the removal was wrongful.
The case involved a couple who moved to Italy from the US, where the Italian husband allegedly abused his American wife after the move. The wife later fled to Ohio with their Italian-born infant. The husband petitioned the US District Court for the Northern District of Ohio, claiming the child was wrongfully removed from her country of “habitual residence.” The court granted the petition, which was affirmed by the United States Court of Appeals for the Sixth Circuit. The court reasoned that the parents’ shared intent determines a child’s residence, even without an explicit agreement by the parents to raise the child in Italy.
The Supreme Court held that a child’s habitual residence depends on where the child regularly resides. However, the inquiry to determine residence is based on the context of a case— a totality of circumstances standard. “What remains for the court to do in applying that standard … is to answer a factual question: Was the child at home in the particular country at issue?”
The Supreme Court found that the District Court accurately determined that the wife was a habitual resident of Italy, like the husband. The Court ultimately held that the child was also found to be a habitual resident of Italy, thus affirming the lower courts’ decisions. The wife’s custody and parental rights in Italy are pending.
Source
https://www.jurist.org/news/2020/02/supreme-court-holds-a-childs-habitual-residence-for-custody-purposes-depends-on-totality-of-circumstances/