Two white whales are the subject of my Captain Ahab diatribes in this space.  One concerns an issue of cross-border civil procedure, while the other concerns a rather goofy* interpretation of what the rest of the world views as plain language.  I address here the latter of the two:  the concept of a child’s habitual residence.  Remember those words, friends, because the U.S. Supreme Court held unanimously today that the term habitual residence should be analyzed under a totality-of-the-circumstances test.

In Monasky v. Taglieri, the Court held that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on “categorical requirements.” 

To be sure, this interpretation applied to the Hague Child Abduction Convention, in a case where the abducting parent took a mere weeks-old infant from its country of birth against the wishes of the other parent, and took her to another land– conveniently, the United States.  A trial court agreed with the other parent, saying “nope, take the baby back where she was born, and let them determine custody.”  That’s a gender-neutral distillation of the facts based on the Court’s syllabus, but it needs to be so in order to avoid bringing sympathy to bear on the matter.  The Court’s reasoning was spot-on, and it gives lower courts ample flexibility to weigh a range of factors into determining a child’s habitual residence.

I leave analysis of the case itself to more learned colleagues, most notably Amy Howe at SCOTUSBlog, and the host of others who will no doubt parse Justice Ginsburg’s text in the coming days.  My focus is instead on another treaty– the Hague Adoption Convention (1993), the interpretation of which in the United States has been an abomination for over a decade.

Just over a year ago, in Habitual Residence: Two Definitions, I offered this:

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

Well, Justice Ginsburg was pretty clear today– the parents’ intent is not the only thing that matters.  More circumstances must be taken into account.  As of today, a broad view is undeniably United States law under the Hague Child Abduction Convention, and courts have latitude to look into the reality of a child’s existence, rather than just an isolated element.  Under the Hague Adoption Convention, however, U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  Period.  No context, no consideration given to where the child has laid its gentle head for the past several years, no thought to what might happen to the child if its destiny is left to arbitrary decisions…

My argument today is that the Monasky holding should be applied to the Adoption Convention just as it is applied to the Abduction Convention.

The primary goal of the Adoption Convention is to stem the tide of human trafficking– a laudable one, to be sure– literally to stop the sale of babies on a sick, twisted global market, rife with the worst of humanity on both the supply- and demand- sides.  A unilateral, single element definition of habitual residence as currently applied (country of birth, period) certainly accomplishes that.  But it also arbitrarily prevents the adoption of children with no other option but to be taken in by their own aunts, uncles, grandparents, older siblings, and just kind Americans who want nothing but to give these kids a better life.

I hope Monasky stands for more than just one treaty.  It’s the same concept– habitual residence– in both treaties.  And the rest of the world views the idea in the same light.**  We should, too.

* I originally typed that as “Philistine-pig-ignorant” but decided that was too harsh.

** The Court’s opinion gave significant weight to the interpretation of the term by foreign courts.