Newly Born Issues for Habitual Residence: Determining a U.S.-Born Infant’s Habitual Residence Under the Hague Abduction Convention Post-Monasky

Joseph N. Sotile*

The Hague Convention on the Civil Aspects of International Child Abduction aims to restore the “status quo” for children who were wrongfully removed or retained by a parent in another country. The Convention achieves this by returning the child to their original home, referred to as their “habitual residence.” The Convention did not define habitual residence, but the U.S. Supreme Court case Monasky v. Taglieri clarified the habitual residence analysis in 2020. Monasky standardized an open-ended “totality of the circumstances” test. This guidance concerned family law lawyers who believed that it gave district courts too much discretion and could result in inconsistent outcomes in cases with similar facts. This Note identifies one such instance: when a pregnant parent travels to the United States to give birth and is subsequently petitioned by their partner for the return of the newborn child.

This Note proposes a method of analysis for this circumstance. Previously, an infant’s habitual residence has been largely based on the parents’ intentions for the child’s location. This Note argues that those intentions should imbue at the time of the child’s birth and that parental intentions that only existed prenatally should not weigh heavily in the analysis. It also calls on the Special Commission on the Practical Operation of the 1980 Child Abduction Convention to provide guidance on similar cases.

*Head Notes Editor, Columbia Journal of Transnational Law; J.D., Columbia Law School, 2024. Thank you to Professor Josh Gupta-Kagan for his immense guidance and mentorship; to Riley Traut, Jackeline Carcamo, and the staff of the Columbia Journal of Transnational Law for their editorial work; to my parents, Christine and Steven, and sisters, Caroline and Stephanie, for their eternal support and constant encouragement; and to my nieces and nephew who sparked my interest in family law.