Standardizing the Standard: Determination of “Habitual Residence” Under the Hague Convention

BACKGROUND

In 1980, the United States and the member states of the Hague Conference on Private International Law unanimously adopted the Convention on the Civil Aspects of International Child Abduction. In 1988, Congress passed the Hague Convention’s enabling statute, the International Child Abduction Remedies Act. 22 U.S.C. §§ 9001–9011. In doing so, Congress reiterated the Convention’s purpose “to help resolve the problem of international abduction and retention of children” and to “deter such wrongful removals and retentions.” 22 U.S.C. § 9001(a)(4). Accordingly, Congress empowered “courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claim.” 22 U.S.C. § 9001(b)(4). As a result, the determination of a child’s “habitual residence” is the fundamental question in any case under the Hague Convention. The answer controls whether the Convention applies, which nation’s laws determine custodial or access rights, and whether a child must be sent across international borders to another country for adjudication of those rights.

THE ISSUE

Whether a district court’s determination of “habitual residence” under the Hague Convention should be reviewed:

  1. De novo, as seven circuits have held;
  2. Under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; or
  3. Under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held.

THE SPLIT

Among the ten circuits that have addressed the issue, three different standards have emerged for reviewing a district court’s habitual-residence determination.

Seven circuits apply de novo review to a district court’s determination of habitual residence, thus reviewing the district court’s underlying findings of historical fact for clear error. The Second Circuit explained that the habitual residence determination is heavily fact-dependent, but the question of whether the pertinent facts satisfy the legal standard is a question of law to be reviewed de novo. Guzzo v. Cristofano (2013). Similarly, the Third Circuit held that the “determination of habitual residence is not purely factual, but requires the application of a legal standard, which defines the concept of habitual residence, to historical and narrative facts.” Feder v. Evans-Feder (1995). Keeping in line with this approach, the Third Circuit applies “a mixed standard of review, accepting the district court’s historical or narrative facts unless they are clearly erroneous, but exercising plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts.” The Fifth Circuit agrees, explaining that such a determination presents a mixed question of law and fact subject to de novo review. Larbie v. Larbie (2012). The Seventh, Eighth, Ninth, and Eleventh Circuits also apply the same approach — reviewing the underlying historical facts for clear error, but reviewing the ultimate determination of habitual residence de novo. Koch v. Koch (7th Cir. 2006); Silverman v. Silverman (8th Cir. 2003); Mozes v. Mozes (9th Cir. 2001); Ruiz v. Tenorio (11thCir. 2004).

In contrast, the Fourth Circuit found that the crux of the habitual residence determination is whether the district court’s finding is clearly erroneous. Maxwell v. Maxwell (2009). Almost a decade later, the Sixth Circuit joined the Fourth Circuit in applying that deferential standard. The Sixth Circuit held in Taglieri v. Monasky (2018) that it would “treat the habitual residence of a child as a question of fact.” Emphasizing the comparative advantages of trial and appellate courts and the highly deferential nature of clear-error review, the court uniquely articulated that it would affirm the district court’s habitual-residence determination “unless the fact findings ‘strike us as wrong with the force of a five week-old, unrefrigerated dead fish.’” The court then deferred not only to the district court’s findings of historical fact but also to its determination that those facts were legally sufficient to establish a child’s habitual residence.

The First Circuit adopted a hybrid approach. Although it applies clear-error review to historical facts underlying the habitual-residence determination and de novo review to the district court’s resolution of that question, the First Circuit gives some deference to the district court’s determination. According to the First Circuit, it is fairly difficult in Hague Convention litigation “to attach an abstract label to a complex of discrete facts, some of which push each way.” Nicolson v. Pappalardo (2010). With this approach, the court will reverse a “district court’s raw fact findings . . . only for clear error,” giving some form of deference to the district court’s application of the standard in determining habitual residence.

LOOKING FORWARD

When Congress adopted legislation implementing the Convention, it emphasized “the need for uniform international interpretation of the Convention.” 22 U.S.C. § 9001(b)(3)(B). Ten circuits applying three approaches is not the uniformity Congress intended. Fortunately, the Supreme Court found a proper vehicle to address the lack of uniformity in Monasky v. Taglieri. Set for oral argument on December 11, 2019, the Supreme Court will shed light on which standard of review a Court of Appeals should apply to a district court’s determination of habitual residence under the Hague Convention. In deciding Monasky, the Sixth Circuit created an additional split that the Supreme Court will also examine later this year. That issue will be discussed in another Sunday Split.

Customary International Law: When does this binding federal law apply?

¯\_(ツ)_/¯

What is it?

Customary international law, also known as public international law, is the body of law determined by the “general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) of the Foreign Relations Law of the United States S102(c)(2). In other words, international law need not arise exclusively from treaties and formal international agreements; it may also arise from an aggregate of states’ actions, states’ official statements, and international legal obligations arising from mutual concerns.

Why do I care?

Whereas treaties and other international agreements are not necessarily self-executing (in that they often require Congressional approval or specific statutes to become binding US law), customary international law is a binding, valid part of United States federal common law. See The Paquete Habana (S.Ct. 1900); Banco Nacional de Cuba v. Sabbatino (S.Ct. 1964). However, this body of law is for the most part completely inaccessible.

Bringing a cause of action based on customary international law is nearly impossible, and prevailing on such an action carries an even slimmer chance of success. Based a cursory review of Federal case law, one could easily come to the conclusion that the only scenarios under which customary international law can successfully be used to uphold individual rights are those that involve fish, kidnapped anglers, and the Spanish-American War. The Paquete Habana (S.Ct. 1900).

So why the lack of application?

There is no question that customary international law is a valid part of federal common law. Even the Rehnquist court, despite its ideological fault-lines, found consensus on the validity of customary international law as a part of federal common law in Sosa v. Alvarez-Machain (2004):

For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

Unfortunately one significant problem was – and continues to be – a rather important issue. How do we define what, exactly, customary international law dictates?

The Split

Modern Second Circuit vs. Ye Olde SCOTUS

Customary international law was first recognized as a part of federal common law in the landmark case of The Paquete Habana (S.Ct. 1900), and later upheld for the post-Erie world by Banco Nacional de Cuba v. Sabbatino (S.Ct. 1964). In the former case, two Spanish fishing boats were captured by the naval blockade surrounding Cuba during the Spanish-American war. The ships and their cargo were taken back to Florida where they were sold at auction as “spoils of war.” The Court, in ruling that such a seizure was a violation of customary international law relied upon the following treatise by Carlos Testa a captain in the Portuguese navy and a legal scholar of the time:

Nevertheless, in this, customary law establishes an exception of immunity in favor of coast fishing vessels. Fishing is so peaceful an industry, and is generally carried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the enemy’s country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice generally followed establish this humane and beneficent exception as an international rule, and this rule may be considered as adopted by customary law and by all civilized nations.

However, in United States v. Yousef (2003) the Second Circuit rejected such reliance on the work of scholars for clarification of customary international law, declaring such statements as usurpation of legal power by non-state actors if relied upon as anything more than supplementary evidence that relevant customary international law existed.

This notion—that professors of international law enjoy a special competence to prescribe the nature of customary international law wholly unmoored from legitimating territorial or national responsibilities, the interests and practices of States, or (in countries such as ours) the processes of democratic consent—may not be unique, but it is certainly without merit.

Thus, according to the Second Circuit, clarifications of customary international law are invalid as bases of decision. And when Yousef appealed, the Supreme Court declined to grant certiorari.

Looking Forward

Where does this leave customary international law? Can we rely on the work of legal scholars to clarify customary international law as we do for domestic common law under the Restatements? Or is reliance of such clarifications a usurpation of power from national and international actors?

If the former, does this place us at the mercy of academics in deciding matters of international law and diplomacy? If the latter, does a rejection of clarification render this entire body of law unenforceable and functionally useless?

For further reading, see “International Law as Law in the United States”, Michigan Law Review Vol. 82, No. 5/6 (1984); Litigation of International Disputes in U.S. Courts, 2d § 9:2.