The two most important cases to be decided by any court in the world regarding this treaty

By Andrew Zashin*

“These are basically the two most important cases to be decided by any court in the world regarding this treaty.”

“The story is that if the court finds there is a grave risk of harm for the child, the court should not send the child back, full stop.”

-Michael Scharf,
BakerHostetler Professor of Law,
School of Law,
Case Western Reserve University,
Frederick K. Cox International Law Center


On Tuesday, March 22, I am excited to have the rare opportunity to return to the Supreme Court of the United States (“SCOTUS”) with another monumental case, Golan v. Saada.

Golan regards an international treaty, specifically, the 1980 on the Civil Aspects of International Child Abduction (“Hague Treaty”). I and my Family Law team at Zashin & Rich, previously represented the Respondent in the seminal case, Monasky v. Taglieri, throughout that case and before the Supreme Court. The Monasky case was the fourth Hague Treaty case SCOTUS ever heard, and certainly the most important, as it dealt with the meaning and application of its threshold issue, “Habitual Residence” of a child.

In Golan, the fifth case SCOTUS will hear on this international treaty, the fundamental issue is also of exceptional importance, the 13(b) Grave Risk of Harm exception to a Habitual Residence return order.

More broadly, the Grave Risk of Harm issues in this case concern a lower court’s ameliorative measures order, and domestic violence, and whether or not a child should return to his Habitual Residence despite a Grave Risk of Harm finding under Article 13(b).

Generally speaking, a Grave Risk of Harm finding should prevent a child’s return to the place of his or her habitual residence. In this case, the the Federal District Court in the 2nd Circuit (New York) were legally bound to, and have tried to, create ways to make a return “safe” for Ms. Golan and her child. I personally, and other legal scholars believe (as opposed to our particular position in the Golan case, lawyers have to be flexible!), that there is no safe way to return a child after a Grave Risk finding has been found. In fact, to return a child after a Grave Risk of Harm finding would be both contrary to the explicit language and the spirit of the Hague Treaty.

Others, like those in the 2nd Circuit and those who support its findings, believe that it is a court’s duty to find any reasonable way to return a child whose Habitual Residence has been determined to be outside of the United States. Textually, the basis for this belief is baffling, because there is no language in the Hague Treaty itself that suggests such an interpretation. Also, traditional methods for interpreting international legal documents, like treaties, support my interpretation.

In addition, the United States requires the burden of proof to find Habitual Residence its the lowest standard, a “preponderance of the evidence.” To establish a Grave Risk of Harm, however, which Ms. Golan has established, the United States uniquely requires a higher standard, the “clear and convincing evidence” standard. Therefore, after having established this higher burden, the Respondent, our client, a domestic violence victim, who has no money and is being represented pro bono, is being asked again, to surmount yet another legal challenge, i.e., in layman’s terms, that the ameliorative measures the 2nd Circuit imposed are impermissible under the treaty. Which, of course, is odd because the Hague Treaty makes no mention of an exception to Grave Risk of Harm in the first place!!!

So, I ask, how many burdens does someone who has already made her case of Grave Risk of Harm have to face?

Is this justice?

In Golan, the ameliorative measures that the 2nd Circuit ordered to make the child’s return “safe,” are simply impractical, unenforceable, unfair, dangerous, and create an intolerable and unconscionable situation for the child and his mother.

On top of this, the federal courts have seemingly failed to consider that when this case started the child at issue was 2 years old and now the child is 6 years old. The father has not paid child support, and the child has been in America for 4 years. Moreover, the child, like his mother, speaks no Italian.

Moreover, as the parties have a Jewish religious, and not a secular, marriage. The husband’s failure to give our client, Ms. Golan, a Jewish religious divorce, a GET, prevents her from getting remarried or from having traditionally Jewish children. He is what is known as a “GET denier.” This fact is a violation of her human rights. An individual is allowed to practice the religion she chooses, without interference, fear, and coercion. She is also allowed to constitue her family as she wishes. Ms. Golan is being denied these rights (start here: Article 16, Universal Declaration of Human Rights). What the husband does do, through counsel, is use the GET as leverage; as a means of coercion. A GET given under such pressure, however, invalidates the GET in the first place. So his offer to give Ms. Golan a GET conditionally is merely a self-serving ploy (for example see his attorney’s comments in the article attached).

At the beginning of this post I set forth two quotations from world-renowned international legal scholar, Professor Michael Scharf, which are contained in the article herein. As the quotes attest, the Golan and Monasky cases are of monumental jurisprudential importance. They will be cited in judicial decisions concerning the issues of Habitual Residence and Grave Risk of Harm, in the United States, and surely, throughout the world.

I, and my team at Zashin & Rich, are proud to be at the absolute cutting edge of the most important legal issues internationally, in the United States, and throughout Ohio.

International case involving ‘get’ reaches Supreme Court

By BECKY RASPE | Cleveland Jewish News

Another habitual residence case, Golan v. Saada, involving a local family practice law firm will be heard March 22 by the U.S. Supreme Court in Washington, D.C.

The term “habitual residence” is essentially the location where a child has spent most of his or her life, or where he or she has the deepest connection. Whether the habitual residence is defined by the parent or by the child, age depending, is a matter of debate.

“I became involved because of the Monasky case,” attorney Andrew Zashin, co-managing partner of Zashin & Rich in Cleveland, and a member of Golan’s legal team. “This is in some ways the flip side of that case and I have always been interested in the Hague Convention’s Grave Risk of Harm exceptions.”

The difference with this case, compared to the most recent hearing of Monasky v. Taglieri that was ruled in favor of the father in February 2020, where Zashin represented the mother, Michelle Monasky, is that Golan v. Saada deals with grave risk of harm – where returning the child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, as laid out by Article 13(b) of The Hague Convention on the Civil Aspects of International Child Abduction – and whether a district court is required to consider ameliorative measures that would facilitate the return of the child safely, notwithstanding the grave risk finding.

A look at the case

In Golan v. Saada, the couple met and began a relationship in June 2014. Narkis Aliza Golan moved to Milan, Italy, to live with Isaaco Jacky Saada, and two months later, they were married in a religious Jewish marriage. Their child, referred to as B.A.S. in court documents, was born in Milan in 2016 and spent two years living there with his parents. But, in July 2018, Golan took B.A.S. to a wedding in New York and did not return to Milan in August as scheduled.

According to court proceedings, Saada then initiated actions in the Italian court system and the United States to seek the return of his son by filing a criminal kidnapping complaint, initiating civil proceedings against Golan. He filed his lawsuit in September 2018, but Golan refused, stating it would pose a physical and psychological danger to her and the child as the marriage was “physically, psychologically, emotionally and verbally abusive,” according to a January 2022 brief filed by Golan’s team, led by attorney Karen R. King, partner at Morvillo Abramowitz Grand Iason & Anello PC in New York City.

While Zashin has been involved in several domestic violence cases, what makes Golan v. Saada unique is that it involves the Hague Convention.

“Previously, the Supreme Court had heard only four cases regarding the Hague Convention, including Monasky v. Taglieri and this is the fifth,” he told the Cleveland Jewish News. “Monasky, that focused primarily on the Habitual Residence issue in the convention. This case focuses on the Article 13(b) issue, which is an exception to Habitual Residence, grave risk of harm. So, it is like the flip-side of Monasky. These are the two issues are pillars of the entire 1980 Hague Convention of Child Abduction, and cases like this will be cited forever. My client is an abused woman, a mother, who is both sympathetic and in an intolerable situation. The idea of her returning to Milan is horrible, unjust, and contrary to the language and spirit of the treaty itself.”

But Saada’s legal team, led by Richard Min, partner at Green Kaminer Min & Rockmore LLP in New York City, notes the case demonstrates clear child abduction under the Hague Convention, requiring the child to be returned by international law.

“I hope to use my expertise to advocate for a father who has been dealing with all of the complex effects of having his child taken from his home and extended family,” Min told the CJN in an emailed statement. “Decisions regarding the best interest of children should be decided by courts in their home country and parents should not be able to unilaterally abduct children with the aim of changing the jurisdiction of custody.”

Min added that since the child had been taken to the United States, B.A.S. has been “deprived of the love and support from the father and his extended family of grandparents, aunts, uncles and cousins who live in the same building.”

“Prior to the abduction, the child had daily contact with his extended family as well as weekly Shabbat meals and family gatherings, which he has since been denied,” he said.

Golan seeks ‘get’ from Saada

One of the other aspects of the case surrounds the claim that Golan has been denied a get, or a Jewish religious marriage divorce, from Saada.

“As such, she cannot remarry or have traditionally Jewish children under Jewish law,” Zashin said. “It is the first time a woman in this position, a chained woman, an “agunah,” has made it to the Supreme Court. It may not move the legal needle so to speak, in this case, but it does describe the character of the individual demanding the return of the child to Italy. The ability for her to have a family, the ability to define the nature of your family, is a human right. And our client, Ms. Golan, is being denied that right.”

But, Min noted that Saada has “consistently said he has no problem with the get as soon as the child returns to Italy.”

International importance

Michael P. Scharf, dean and the Joseph C. Hostetler-BakerHostetler Professor of Law at Case Western Reserve University School of Law in Cleveland, who helped co-write a March 2021 amicus brief submitted by the Frederick K. Cox International Law Center at CWRU, said the Golan v. Saada case, along with the prior Monasky v. Taglieri case, is “very important,” because of the sheer number of Americans that live abroad, have kids abroad or are married to people who live abroad.

“These are basically the two most important cases to be decided by any court in the world regarding this treaty,” he told the CJN. “The first case answered the question of what habitual residence means. This one focuses on the grave risk of harm, which is the exception of habitual residence. They’re bookends of the Hague Convention.”

Scharf said when the courts determined grave risk of harm but still moved to consider ameliorative measures was a “weird decision.”

“The story is that if the court finds there is a grave risk of harm for the child, the court should not send the child back, full stop,” he said. “But the 2nd Circuit said what if we order these protective measures? These are just very involved things that the U.S. courts could ask the Italian courts to do. The U.S. can ask that they do it, and just have to hope they will. They can’t follow up or complain about it if it isn’t happening.”

Something like that could cause issues in international relations, Scharf added.

“In our brief, we say that this offends ‘good neighborliness,’” he said. “Two things could happen, both of them bad. The U.S. courts could defer wrongly to the Italian courts to enforce the ameliorative measures, or two, these orders could get in the way of U.S. foreign relations with Italy.”

Decision could further clarity

Zashin said he hopes the hearing causes the Supreme Court to focus on the case’s practical evidence, rather than just taking a legalistic look.

“The child at issue here is six years old. He has lived in the United States for four years, and doesn’t know his family overseas,” he said. “The court, practically speaking, should consider how much time has elapsed already, because of how deficiencies in our own court system when it comes to handling Hague cases. The court should realize that sending the case back for more proceedings in the lower courts, which is a real possibility, would harm the child even more. The child at issue does not even speak Italian. Anything the lower courts can fashion in the way of ameliorative measures do not make sense anymore. Federal courts need to be streamlined when handling Hague cases. Therefore, remanding this case for further proceeding would be grossly unfair.”

And the fact the case is being heard at all is a “credit to our legal system,” Zashin said.

“This case has been going on for a years,” he said. “There are so many unanswered questions in our system about how it can handle situations like this. So, we hope the Supreme Court is going to create some uniform procedural rules and not make the situation worse. Ideally, we want the Court in this case to stop the delays, end all the court proceedings, and let the child stay in the only home he knows.”

Min said his team hopes the child is instead returned to Italy in time for the custody proceedings scheduled for June.

“Ultimately, a thorough best-interests analysis will also include an evaluation, not just of the father, but also of the mother’s parental abilities and the risk she may herself present to the child,” he said. “These factors are critical to the custody case in Italy but have largely been ignored as it is not relevant to a Hague case, which serves only to highlight the differences between a custody case and a Hague abduction case.”

But simply put, Zashin said, “this sounds like a cliche, but this case will literally be one for the books.”

Other than the custody hearing scheduled in Italy this spring, there is no currently established time frame for the opinion and vote.

This article originally appeared as a column for the Cleveland Jewish News.

Defining “Habitual Residence” in the Hague Convention

In Monasky v. Taglieri, SCOTUS took the opportunity to define “habitual residence” and proclaimed a uniform legal standard for the first time. The decision alters the trajectory of U.S. Hague Convention jurisprudence on this issue.

By Amy Keating and Chris Reynolds, Family Lawyers*

On December 11, 2019, the United States Supreme Court (SCOTUS) heard oral argument in Monasky v. Taglieri,1 a case that hinges upon the definition of “habitual residence” for an infant under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). In fact, this was only the fourth case that the Supreme Court has taken dealing with the Convention and the first time that the Court has spoken on the issue of habitual residence. The term “habitual residence,” which is not defined in the Convention itself, afforded SCOTUS the opportunity to consolidate jurisprudence in the United States.

Many family law practitioners find international issues daunting, even if they have a vague understanding of what the Convention is. So, what is it? Plainly, it is a multinational treaty, one of many under the “Hague Convention” umbrella intended to protect children from the harmful effects of international abduction. Its main goals include bringing about children’s prompt return, and it is designed to prevent parents from forum shopping in international custody disputes. Like the UCCJEA, the Convention is essentially a forum selection law, intended to be about who decides not what is decided.

The basic components of a Convention claim include:

  1. a wrongful removal/retention of a child;
  2. when the child was habitually resident in a contracting state;
  3. in breach of rights of custody;
  4. when the child is under the age of sixteen;
  5. within one year of the removal/retention (after one year, the Convention still favors returns but considers whether the child is settled in his/her new environment [Art. 12]).

The burden of proof is on the petitioner who must prove these elements by a preponderance of the evidence in the U.S. Establishing a prima facie case presumes a right of return to the child’s habitual residence unless one of the narrow defenses applies.

Defining Habitual Residence in the Hague Convention

 

Three Standards for Habitual Residence

Despite its critical importance, “habitual residence” is not specifically defined in the Convention – primarily because the drafters could not agree on a definition.2 As a result, prior to Monasky, different jurisdictions crafted different legal standards to determine this very key term of the Convention. For purposes of simplicity, there were three standards that developed in the U.S.:

  1. Acclimatization standard;
  2. Shared Parental Intent standard;
  3. A hybrid of both standards.

Acclimatization, the prior standard in the Sixth Circuit,3 focused on where the child has been physically present for an amount of time sufficient for “acclimatization” and which has a “degree of settled purpose from the child’s perspective.4 It looks for indicia of the child’s connectivity to a place through objective criteria such as school, extracurricular activities, social activities, and meaningful relationships with people in that place.

Shared Parental Intent focused on where the parents intend for the child to be raised.5

To determine a child’s habitual residence, we “look[ed] for the last shared, settled intent of the parents.” A court considered the parties’ subjective intent but also objective evidence of steps the parties took in furtherance of that intent – outward manifestations of where the parties intended for the child to be raised.6

Other circuits have adopted a hybrid standard that considered both Acclimatization and Shared Parental Intent, weighing them differently depending on the jurisdiction. Good examples of this exist in the 8th and 3rd Circuits, among others.7

Monasky v. Taglieri

In Monasky, the parties meet and marry in Illinois, but relocate to Italy, disagreeing as to how long they intend to stay. The parties’ marriage deteriorates, and there are credible allegations of domestic violence. Monasky becomes pregnant but, by the time of the child’s birth, the marriage is irretrievably broken. Due to an emergency cesarean section, Monasky cannot leave Italy due to her recovery and lack of a US passport for the child. Monasky tells Taglieri she intends to return with the child to the US as soon as possible; Taglieri alleges that the parties had reconciled. When the child is 6 weeks old, Monasky and the child are placed in an Italian domestic violence safe house. When the child is 8 weeks old – and as soon as her US passport is issued – Monasky and the child leave Italy for the US. After a four-day bench trial, the district court found that Italy was the infant’s habitual residence and ordered a return.

In the Sixth Circuit, acclimatization had been problematic for infants or children with cognitive disabilities. In other words, what should a court do with children that cannot acclimatize? This had been an “open issue” for some time, but the Sixth Circuit had not been forced to contend with it directly. Monasky – along with another case that hit the Sixth Circuit at the same time (Ahmed v. Ahmed, 867 F.3d 682, 2017) – made it impossible to sidestep any longer. Would the Sixth Circuit agree with the majority of other circuits that shared parental intent was the standard for this category of children? Ultimately, an en banc Sixth Circuit agreed that shared parental intent was the proper standard (907 F.3d 404, 2018).

Must Every Child Have a Habitual Residence?

Further, must every child have a habitual residence at all? One camp holds that, while rare, there are times when a child has not formed a sufficient connection to a particular place, either directly or through its parents. In those situations, the Convention simply does not apply because there is no status quo to return to. The other camp argues that a child always has a habitual residence; that it must always exist. In Monasky, our position had been that the child never acquired a habitual residence due to her young age and the parental discord about where the child would be raised – the absence of shared parental intent.

Despite agreeing that shared parental intent was the appropriate standard, the en banc Sixth Circuit found that habitual residence was an issue of “pure fact” subject to clear-error review. It refused to remand the matter so the trial court could apply the facts to the new legal standard and upheld the return by a vote of 10 – 8.

We identified two circuit splits that the Supreme Court agreed merited review. The questions were:

  1. Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo…or under clear-error review; and
  2. Whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence.

 

Is Habitual Residence an Issue of Pure Fact?

“Standard of review on appeal” may not seem like a “sexy” topic, but lawyers know that it can make a big difference in the outcome of cases. The Court must determine whether habitual residence is an issue of pure fact – calling for strong deference to the trial court on appeal – or a question of “ultimate fact” or “mixed question of fact/law” – requiring a de novo review.

Habitual Residence in the Hague Convention: SCOTUS’ Decision

On February 25, 2020, the U.S. Supreme Court issued its opinion in Monasky v. Taglieri. SCOTUS held that a child’s habitual residence depends on the totality of the circumstances specific to the case – providing one uniform legal standard for this key term for the first time, applicable to all children. The Court rejected Monasky’s “actual agreement” requirement in favor of a flexible and fact-driven standard. SCOTUS also held that habitual residence determinations should be subject to a “clear error” appellate review.

This decision has altered habitual residence determinations in the US and changed the language and the landscape of habitual residence going forward. Despite the positive effects of a now-unified habitual residence standard, we remain concerned about the practical impact of the Court’s adoption of a clear error standard of review.

This pronouncement – and the Court’s apparent trade-off of expediency over other considerations – makes it more likely that cases with similar facts will have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm, and it is especially pernicious when the well-being of children is at stake. While we certainly hope our fears don’t materialize, that is now the state of our law.


1 In the District Court of Appeals, the case is captioned Taglieri v. Monasky.
2 A more comprehensive of the Convention would necessarily include additional explanation of the other components. Because Monasky is focused on habitual residence, we are confining our discussion to only that term.
3 See Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) and Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).
4 Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007).
5 Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013).
6 The seminal case on this standard is Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
7 A slightly different version of this exists in the 7th Circuit in Redmond v. Redmond, which implements a totality of the circumstances approach that considers both Acclimatization and Shared Parental Intent as factors. The Supreme Court seems to have relied heavily on Redmond and similar cases in this line of reasoning in arriving at its decision in Monasky.


This article originally appeared as posted by Diana Shepherd on Family Lawyer Magazine.

*Amy Keating and Chris Reynolds are both OSBA Certified Specialists in Family Relations Law, and they tried Monasky v. Taglieri in the Northern District of Ohio. On both appeals in the Sixth Circuit and before the Supreme Court, they were co-counsel with Gibson Dunn in Washington, D.C. and Professor Joan Meier of George Washington University. Amy focuses her practice on family law matters, including child custody and issues concerning parental relocation. Chris has significant experience representing parents in international custody matters, including international child-abduction cases implicating the Hague Convention.

Official statement from Zashin & Rich: Monasky v. Taglieri 589 US____2020

We are, obviously, disappointed in the outcome of the Supreme Court case Monasky v. Taglieri, especially for its impact upon Michelle Monasky and her daughter. Like all matters before the Supreme Court, however, this case had, and has, implications bigger than the impact on the particular litigants. While our involvement in this case has always been about achieving justice for our client and her daughter, it highlighted the then-fractured nature of US Habitual Residence jurisprudence and the impact of domestic violence in 1980 Hague Convention cases.  

The Supreme Court of the United States adopted a new unifying standard for Habitual Residence, not just for infants and children unable to acclimate, but for determining Habitual Residence writ large. This seminal decision—on what is effectively the central provision of the 1980 Hague Convention (Habitual Residence)—renders many prior controlling decisions obsolete.   While the Court was unwilling to adopt an actual-agreement requirement to protect survivors of domestic violence, it did state that a child’s presence in a country due to parental coercion “should figure into the calculus.”  The Supreme Court further suggested that the “grave risk” exception remains “a mechanism for guarding children from the harms of domestic violence,” even if the Court was unprepared to address whether violence against a parent alone, but not specifically directed at the child, would constitute a grave risk of harm.

Despite the positive effects of a now-unified Habitual Residence standard, we remain concerned about the practical impact of the Court’s adoption of a purely fact-based Habitual Residence standard and a “clear error” standard of review. This pronouncement, and the Court’s apparent trade off of expediency over other considerations, makes more probable situations wherein cases being decided on similar facts have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm and is especially pernicious when the well-being of children is at stake.

En banc session of a United States Court of Appeals – How do courts determine the habitual residence of an extremely young child?

Download PDF of Press Release

An en banc session of a United States Court of Appeals is a case that involves complex issues or involving matter of exceptional public importance. In fact, it is so exceptional it is practically the last appellate step before the court of last resort—the United States Supreme Court. Taglieri v. Monasky, 2017 U.S. App. LEXIS 24292 (6th Cir., Nov. 29, 2017); 876 F.3d 868 (6th Cir.2017), is one such case. In Taglieri v. Monasky, Zashin & Rich defended Ms. Monasky at the trial court level and have been actively involved at all appellate levels. This is a case which has squarely turned on, to date, an open legal question in the 6th Circuit: how do courts determine the habitual residence of an extremely young child?

All areas of law develop over time, and that is true for how United States courts address the determination of a child’s habitual residence pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. One particularly challenging aspect of making those determinations occurs when the child at issue is unable to meaningfully form connections to any particular location, whether that is due to being extremely young or disabled. The facts in Taglieri v. Monasky are heart-wrenching and on-point: a child is born in Italy to an American mother (Monasky)and Italian father in the midst of a disintegrating marriage fraught with spousal abuse perpetrated against Ms. Monasky, even while pregnant. While Ms. Monasky made clear to Dr. Taglieri her intentions to leave Italy with the child as soon as possible after her birth, Ms. Monasky was effectively trapped in Italy for several weeks awaiting the child’s passport. After the marital situation came to a head, resulting in Ms. Monasky and the child being placed in a domestic violence safe house, Ms. Monasky is finally able to secure the child’s passport and leave Italy for the US with her then-8-week-old daughter.

In Taglieri v. Monasky, although the trial court ordered the child to be returned to Italy primarily because the court had no direct guidance on the appropriate legal standard from its superior courts. On appeal, Ms. Monasky’s counsel tirelessly pressed what should be the proper legal standard, a standard which had been applied by every other US circuit to have addressed the issue. Namely, when a child is too young to form meaningful connections and acclimatize to a particular place in order to establish a habitual residence, courts must look to the parents’ shared intent as to where the child would be raised as a proxy. Notwithstanding Ms. Monasky’s fervent efforts, a sharply divided appellate court meted out yet another blow by erroneously fashioning a legal standard at odds with both controlling 6th Circuit precedent, as well as with virtually all precedent in any prior case from the 6th Circuit and all other circuits to have addressed the issue. In effect, the appellate panel majority created both an inter- and intra-circuit split on what is the proper legal standard for determining the habitual residence of a very young child.

Undeterred, counsel sought and obtained an en banc rehearing of Ms. Monasky’s appeal by the 6th Circuit—an accomplishment achieved only once before in a United States Hague Convention case (see Silverman v. Silverman, 338 F.3d 886 (8th Cir.2003)), and the first ever on the issue of determining habitual residence. Zashin & Rich has had two goals from the beginning: to ensure a just and proper outcome for Ms. Monasky and her daughter, and also to advance the adoption of the proper legal standard in such cases. With oral argument before the 6th Circuit set for June 13, 2018, Ms. Monasky’s legal fate and that of similarly situated parents hangs in the balance.

Why Courts Make It So Hard to Relocate with Your children… And How to Win…

Once upon a case, a woman from New York met a man from Cleveland and they fell in love. The man had a successful business in Cleveland and lots of family there. All of the woman’s family was in New York. The woman decided to move to Cleveland in order to marry the man and start a family. They had several children. The woman primarily raised the kids while the man worked. The years passed. The marriage failed. The woman wanted to return “home” to New York with the children. In the practice of Family Law, this sad story repeats itself over and over again.

These are complicated and emotional cases. Almost always the woman in this situation cannot “relocate” to New York with her children, even though the relocation is actually a return for her. There a several reasons for this. But to make a long story very short, here’s why:

Laws generally prevent the permanent removal of children from the jurisdiction of court. Ohio’s law is a perfect example. It is specifically biased against out-of-state relocations, requiring the moving parent to file a notice of relocation, and permitting the non-moving parent to demand a hearing to determine what sort of modification to the parenting plan is possible. While Ohio courts will not prohibit a parent from moving, they can, and sometimes will, find that the parenting arrangement should be modified to keep the children in Ohio. But it is theoretically possibly to relocate if the parent who wants to move can demonstrate that the move is in the child’s “best interest.” The “best interest test” is the heart and soul of nearly every custody or relocation case.
The laws of the United States vary from state to state but determining what is in a child’s best interest, from a legal point of view, has one constant. “Best interest” is in the eyes of the beholder. The beholder is, of course, the judge or hearing officer assigned to the case. No matter how laws defining best interest are written at the end of the day they are necessarily subjective.

An experienced Family Law practitioner knows that the subjectivity of these matters results in formulaic solutions and court outcomes. First, parents are encouraged to work with one another to co-parent after the parties split up, even if they were not able to do this when they were still together. Second, parents are required to foster positive interactions with the other parent (again, even when they could not do this while together.) This often means that geographic proximity is important. Third, parents are required to do things that maintain a stable and consistent environment for the children. Frequently this means prohibiting relocations because they are unsettling, not just for the child and his or her relationships with friends, family and acquaintances, but also because it separates children from a parent.

Thus, the truth is that without a truly compelling reason, courts generally do not allow parents to relocate or simply “go home” with children. Yet, courts do, from time to time, allow relocations. And a person who wants to move with a child can increase his or her chances of getting a court to allow such a relocation.

The takeaway is this: if you want to move with a child you must be able to clearly explain why relocation is not simply good for you or why it is fair. You can, by and large, forget about the reasons why the parents are no longer together. Instead, what the parent who wants to move must show is why the move is actually better for the child and why a move in no way compromises the child’s relationship with the other parent. The ability to persuasively answer these questions from the outset will significantly increase a parent’s chances of getting home.

2023-11-10T13:38:16-05:00March 5th, 2013|Best Interests of the Child, Relocation|

Be realistic when proceeding with divorce proceedings

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Every family law attorney likes to please a prospective client. And every client with family problems likes to hear pleasing things from potential lawyers. The problem is that a potential client needs to be a savvy consumer. Too often, lawyers try to sell exactly what the client wants to hear, whether or not that result is achievable.

And just as often the potential client only hears what he or she wants to hear. Every law school student learns the legal expression caveat emptor, or “buyer beware.” That simple piece of legal wisdom is no less applicable to the client as the consumer of legal services. The client who comes away from a legal experience most satisfied with the result is the one who has realistic expectations from the outset.

• Within the context of your divorce case, your spouse’s bad behavior probably does not matter nearly as much as you wish it did. A murderer gets punished under the criminal law. Someone burnt with inappropriately hot coffee might be entitled to money, and the perpetrator might have to pay some punitive damages under the tort laws.

But under the divorce law, the court’s sole goal is to equitably divide assets and debts and figure out what’s best for your children. The divorce laws care about bad behaviors like infidelity, emotional (non-physical) abuse, alcoholism, and many other issues only to the extent that the behaviors either hurt the children or waste marital funds. So, while we fully understand that you are angry and want nothing more than to watch the judge rip your spouse limb from limb in open court, understand there is little we can do about these issues. The divorce court is simply not going to punish them.

• Your spouse is going to see your children. It is surprisingly common for clients to come into my office and give me a laundry list of reasons why they should have sole custody of the children. Many want their spouse to have minimal visitation time, and some would like it to be supervised for one reason or another. In most cases, I have to counsel them that their expectations are unrealistic. Shared parenting is more common than sole custody.

Ohio counties have default visitation schedules, generally every other weekend, a midweek visit, and split holidays and breaks, which generally represent the minimum amount of visitation one might expect. We get that this is an extremely emotional time for you and you are very upset while going through a divorce. In time, that will hopefully subside. But in the meantime, your children deserve to have relationships with both parents. And you owe it to them to not force them to take sides.

• If you have not been working, the divorce court may expect you to go back to work. Or, if your spouse has taken off time from his or her career to raise the children, he or she may be expected to go back. This is in no way a given. It depends on many factors such as realistic career options, needs of the children, and ability to work. However, when a couple divorces, finances will change. It is a fact, but it is a fact that many clients forget. Money that once supported the household must now support two households. The law understands this, and it will not necessarily require one spouse to maintain everything after the ink is dry.

• Even if your spouse did not work throughout the marriage, he or she is still entitled to share in the employer-sponsored retirement benefits that you accrued throughout the marriage. This law harkens back to the days when women worked little outside the home. But its reasons for remaining in existence are valid. The law is based on the premise that a marriage is a joint enterprise. Even if your spouse was not gainfully employed or simply made less than you throughout the marriage, it is presumed that both sides contributed to the household in some way.

• It is in your best interests to listen to our advice. This may sound intuitive, but many clients forget this basic principle when they start researching on the Internet and talking to their friends, co-workers, Jacob from the gym, and great-aunt Esther. Not all advice is created equally. No two divorces are alike, and what worked or happened in one may not in another. And, what is seemingly making sense on the Internet or in self-help books may have little or no application to your case.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

2023-11-10T13:38:17-05:00April 18th, 2012|Best Interests of the Child, Divorce|

The Alaina Giordano Story: The Children’s Best Interests in Light of a Parent’s Terminal Illness

Her story has garnered national and international coverage and sympathy, spawned an online petition to North Carolina Governor Bev Perdue that is nearing 100,000 signatures, prompted its own Facebook site, and launched Durham County District Court Judge Nancy E. Gordon to infamy. In June, North Carolina mother Alaina Giordano will be required to relinquish possession and custody of her two children, ages 11 and 5, to her ex-husband Kane Snyder. Snyder lives 800 miles away, in Chicago.

Family law courts regularly tackle issues of custody, support and visitation of minor children. In and of itself Judge Gordon’s decision isn’t notable. But the decision was both complicated and vilified by the stage IV breast cancer that has plagued Giordano for the past four and a half years and metastasized to her bones.

Both the press and the general public have been quick to side with Giordano. After all, what kind of a person kicks someone when she is already down? What kind of a judge, particularly a female judge who ostensibly might be a mother herself, would rip children away from a mother who is valiantly fighting against a terrible disease, right when she most needs the strength and purpose that only her children can provide?

But was Judge Gordon’s decision really so wrong?

In custody battles, parents usually forget that they aren’t actually the center of the discussion. Instead, the children are the primary consideration. The question is what is best for the children, not what is best for the parents.

Consider this extreme case. Father was an abusive alcoholic for the first three years of his son’s life. But for the past two years, Father has worked hard to clean up his act, regularly attending therapy and Alcoholics Anonymous, holding down a steady job, and providing for both the emotional and physical needs of his son. Mother, meanwhile, adores her son as well, and doesn’t want to lose custody of him. But Mother is addicted to prescription painkillers. Her addiction prevents her from holding down a job, and a steady parade of drug users and pushers come through her house. Some nights she gets so high that she passes out leaving her five year old to find his own way to bed, and sometimes she isn’t even coherent long enough to feed him dinner. A judge’s choice is easy there, isn’t it? There is no question that both parents love the child, but only one is capable of giving him the care that he needs.

But some might argue that Mother has a choice under those circumstances. If she loves her son as much as she claims, she can work to overcome her addiction. So, let’s consider another extreme case. What about three year old twin daughters who are equally loved by both Mother and Father. Following their divorce, Mother and Father were awarded shared parenting, with the children spending equal time with both parents. Things progress just fine until Father is in a terrible car accident that renders him a quadriplegic. Now he needs a home health aide to help him with basic tasks of everyday living. He unfortunately can no longer care for himself, let alone chase after a pair of precocious toddlers. In that case, should a judge modify the possession schedule based upon this tragic turn of fate in order to ensure the children are adequately cared for? Most people would say yes.

The above examples are hypothetical and extreme ones at that. Further, they are unlike most real custody cases in that they merely consider a child’s physical needs. They fail to account for the psychological and emotional reasons why it may make sense to have children with one parent or the other. In the same way, the public and the press have oversimplified Giordano’s case, focusing predominately on her physical and financial ability to care for her children. Headlines scream that “Mother loses custody of her children because of cancer diagnosis!” Lawyers and analysts dissect what precedent Judge Gordon’s decision creates for parents who are in less than perfect health, or even those who engage in risky but legal behaviors like smoking. But was the decision really that simple? And, was the decision solely about the cancer diagnosis?

Because of the private nature of domestic relations cases, most, or perhaps all, family law courts protect filings and decisions differently than in other cases. And little has been made public about all the issues in Giordano’s case. It has been made publicly known about this case that the custody decision was 27 pages long – hardly a straightforward decision. It has been made publicly known that the custody battle was replete with allegations of abuse, adultery, and mental illness. It has been made publicly known that the couple, while still married, moved to North Carolina for the father’s job, and that his job subsequently took him many miles away to Chicago. It has been made publicly known that the medical team holding Giordano’s cancer at bay are from Duke University. It has been made publicly known that Giordano will not leave North Carolina because her doctors are based there, while Snyder will not leave Chicago because his livelihood is based there. And it has been made publicly known that at least one renowned expert witness opined during the litigation that it was better for the children, psychologically, to have more contact with a non-ill parent, both to strengthen that relationship in preparation for the death of the ill parent, as well as to instill security and stability in their lives, rather than forcing the children to bear witness to the many doctor appointments, debilitating treatments, and visible suffering most often inherent in a cancer diagnosis.

In the 27 pages that constitute her opinion, Judge Gordon no doubt considered far more than just Giordano’s physical ability to provide a home and physical care for the kids. Under the best interests of the child standard she needed also consider the psychological element. The death of one’s parent is always difficult to handle, but it is substantially more difficult when the children are very young, without the perspective and maturity that comes with age and experience. And, while it is true that Giordano’s stage IV cancer could stay at bay for years, there is an equal or greater probability that it won’t. Does it make sense for the children to watch their mother be ravaged by aggressive chemotherapy or radiation treatments? And what happens if Giordano does succumb to the disease? Regardless of Giordano’s assertions that Snyder had been “a weekend father at best,” the children would no doubt be sent to live with their father should their mother pass away. Doesn’t it make sense under such circumstances for the children to get settled in to friends, school, family, and life in Chicago, starting to form the bonds with their father sooner, rather than later, while they still have the luxury of time? Indeed, Good Morning America noted Judge Gordon’s citing of forensic psychologist Dr. Helen Brantley, who apparently stated that “The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent.”

It is easy to take a simplistic view of this situation and conclude that the children should remain with their mother for as long as possible. While the children arguably will benefit from having that relationship, the decision is not nearly as simple as most would have it be. So many other factors should, and no doubt were, considered. While it is a tragic story, much of the press and the general public have formulated an opinion in a vacuum, without a full consideration of the policy reasons that led to the current state of the child custody laws. The law is little concerned with whether Alaina Giordano’s health and well-being is best served by retention of custody. Instead, and rightfully so, the law is concerned with what is in the best interests of her and Snyder’s 11 and 5 year old children. And, while it is counterintuitive in our society to take children from their mother, and seemingly unfair given Giordano’s terminal illness, it is difficult to argue that Judge Gordon got it wrong. The press and general public can continue to argue about the parade of horribles that this precedent will bring about, but, ultimately, the well-being of two children was and continues to be the most important consideration.

Have thoughts or comments on this post? Do you agree or disagree with this argument? Please don’t hesitate to contact us!

2023-11-10T13:38:18-05:00May 23rd, 2011|Best Interests of the Child|

Halle Berry, Gabriel Aubry, and the “Best Interests of the Child” Standard

Couples break up all the time. While often the breakup means simply going in separate directions, when a child is involved the court system most often becomes involved. Issues related to child rearing are difficult for intact partnerships – everything from what school the children will attend, to what religion, if any, they will be raised in, to what they should be fed for dinner, are regularly discussed, dissected, and, hopefully, resolved. But resolution most often becomes infinitely more difficult after a breakup or divorce.

In courts throughout the country, judges make decisions about what will happen to the child based on the “best interests of the child” standard. This concept has been in the national news recently in regard to actress Halle Berry and her former boyfriend Gabriel Aubry.

Within the past few weeks, tabloids and celebrity gossip columns have rushed to report on the trouble brewing between Berry and Aubry in regard to their nearly three year old daughter Nahla. Berry and Aubry broke up in early 2010. As of November they had worked out an informal joint custody arrangement and had maintained, to all outward appearances, an amicable relationship. But then Aubry was spotted out at a Los Angeles Lakers game with reality television star Kim Kardashian, and was reported to be romantically involved with her. Sources differ as to Berry’s response. Rumors flew, with some sources reporting she was hurt and jealous, and other sources reporting that she had no interest in her ex’s dating habits but was merely angry because she did not want her daughter to be exposed to the paparazzi that regularly follows Kardashian.

The relation between these events is murky, but at about the same time Aubry filed a paternity suit in the Los Angeles County Superior Court seeking a formal custody and visitation decision. Then the accusations began. For her part, Berry has described her ex-boyfriend as an unfit father who has made racial slurs against her and has terrified their daughter. For his part, Aubry has claimed to have evidence that Berry is “crass” and “vulgar.” The fight has gotten so contentious that Berry turned down a lead role in the upcoming film New Year’s Eve because Aubry refused to allow Nahla to travel with Berry to New York City for filming.

Berry subsequently accepted a lesser role, also to be filmed in New York. Still facing the same dispute over Nahla’s travel, Berry appeared for her first court hearing on February 16, 2011. The court reportedly permitted the travel, but required Berry to allow Aubry visitation in New York.

In Nahla’s case, the court no doubt recognized that Berry’s work requires travel, and determined it was preferable for Nahla to be with her mother in New York City, rather than in Los Angeles being cared for by a nanny. In providing for visitation in New York, though, the court no doubt also determined that Nahla was not truly “terrified” by her father and found that she would benefit from having both parents involved in her life.

In reaching its decision, the Los Angeles Superior Court’s analysis was nearly identical to that used in courts throughout the country in far less famous cases. Were Nahla’s case decided in Ohio, for example, the judge or magistrate would have been required to consider each of the following factors:

  • The parents’ wishes as to the child’s care;
  • The child’s wishes, if he is old enough and mature enough to communicate them;
  • The child’s interaction and interrelationship with his parents, siblings, and any other individuals who may significantly affect his best interest;
  • The child’s adjustment to his home, school, and community;
  • The mental and physical health of all persons involved in the situation;
  • The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
  • Whether either parent has failed to make all child support payments due;
  • Whether either parent or anyone else in that parent’s household had been convicted of or pled guilty to any criminal offense surrounding child abuse or neglect;
  • Whether either parent has willfully and continuously denied the other parent court-ordered parenting time; and
  • Whether either parent has established a residence, or is planning to establish a residence, outside the state.

Most couples do not have the same resources as Berry and Aubry, and the exercise of visitation across the country is not likely practical in most cases. Yet those less famous regularly face similar issues, and the attorneys at Zashin & Rich Co., LPA counsel clients through disputes just like these on a daily basis. If you must travel for an extended period, can you bring your child with you even if it interferes with your former partner’s visitation time? Can you move out of the county, or even the state or country? What if your former partner plans to move and take your child?

In all of these situations, as in Nahla’s case, the court will consider each question in light of how it will impact the life and well-being of the child. Berry and Aubry, and all parents faced with similar issues, must, with guidance from their attorney, work to show the court why their wishes regarding travel, moving, or any other parenting decisions are in the child’s best interests. And, ultimately, only the parents’ specific circumstances, considered in light of the child, will determine the resolution of any dispute.

2023-11-10T13:38:18-05:00February 23rd, 2011|Best Interests of the Child|
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