International residence case defines standards

By Andrew Zashin*

A decision was recently reached in Taglieri v. Monasky, the habitual residence case involving local family practice law firm Zashin & Rich that on June 13 went to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

“Habitual residence” refers to the location where a child has spent most of his or her life, or where he or she has the deepest connection. According to the Zashin & Rich team – Andrew Zashin, Amy Keating and Christopher Reynolds – the court adopted a standard set forth in a previous 2017 case, Ahmed v. Ahmed. The standard, called shared parental intent, requires that a court determine the shared parental intent of the parties and identify the location where parents intended their child to live.

Zashin, co-managing partner at Zashin & Rich, which has offices in Cleveland and Columbus, said the decision addresses an “open issue” in the circuit, namely the legal standard for habitual residence for infants and children with cognitive disabilities.

“It is the first time the Sixth Circuit has clearly articulated the legal standard for the habitual residence of infants, very young children and children with cognitive disabilities,” he said. “Now, litigants, lawyers and most importantly, judges, have guidance on the law and know what standard they should rely on and utilize. There is now certainty on this issue in the Sixth Circuit, which now falls in line with other federal circuits that have ruled on this issue.”

Zashin noted courts take into account a few variables, like visa status, child custody, living situations, employment and the depth of ties to other countries.

With this ruling, Zashin said parents of children with cognitive disabilities should be aware of this standard when considering moving to the United States inside the Sixth Circuit from another country, especially if it’s short-term. The Sixth Circuit includes Ohio, Michigan, Tennessee and Kentucky.

“Parents should be aware of the factors set forth and consider memorializing their clear, shared intent about where they intend for their child or children to be raised contemporaneous with their location,” he suggested.

Zashin & Rich’s involvement stems from its representation of Michelle Monasky, who is fighting for custody of her child amid what she describes as marital unrest and spousal abuse involving the child’s father, Domenico Taglieri, a resident of Italy.

The firm was tasked with seeking an en banc hearing – when a case is heard before all of the judges of a court rather than a panel of judges selected from them – to establish a legal precedence. The en banc proceedings were issued Oct. 17 for Taglieri v. Monasky.

As for the future of the case, Zashin said Monasky will move to ask the U.S. Supreme Court to accept “certiorari,” which is an order by which a higher court reviews a decision of a lower court on various issues.

According to Zashin, she will have to ask whether “habitual residence” is a mixed question of law and fact which is reviewed “de novo” on appeal, that is allowing the appellate court to review the case as if it were considering it for the first time. If it’s an issue of fact only, Zashin said it is reviewed on appeal under a clear-error standard, which strongly defers to the trial court’s findings of fact.

“While this is, in some ways, a hyper-technical legal issue, Monasky’s case may hinge on this very thing,” Zashin said. “The standard used could be the difference between the child remaining in Italy or being potentially re-returned to the United States. And this, which country has jurisdiction to determine custody.”

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

Landmark international residence case could impact those making aliyah

We are returning from oral argument in Cincinnati with our appellate co-counsel from Gibson Dunn (and fellow co-counsel Joan Meier, professor at George Washington University Law School, rooting us on from D.C.). Congratulations to Aidan Taft Grano for delivering our exceptional argument!

Zashin & Rich, specifically Andrew Zashin, Christopher Reynolds and Amy Keating (all adjunct professors at Case Western Reserve University School of Law and Fellows of the American Academy of Matrimonial Lawyers) tried this case in the Northern District of Ohio in March of 2016. More than two years later, we hope for a positive outcome that puts the Sixth Circuit Court of Appeals in line with its sister circuits for the legal standard on this particular issue.

Read more about this issue in full article by Becky Raspe on the Cleveland Jewish News

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.

Go to Top