Golan deserves an answer

By Andrew Zashin*

Narkis Golan, a U.S. citizen, won a historic 9-0 victory in her international child custody case, Golan v. Saada, before the U.S. Supreme Court on June 15. Golan’s case was the fifth 1980 Hague Convention on the Civil Aspects of International Child Abduction case ever heard. On Oct. 19, Golan was found dead in her apartment. The tragic end to her life and custody case was, at once both shocking and foreseeable.

Golan’s death devastates her family and horribly, her bereft child. Her death also raises two pertinent and interconnected questions:

  • Why has the United States added an additional legal hurdle to the 1980 Hague Convention on Child Abduction?
  • How much do citizens know about the qualifications of judges whose decisions effect their lives?

There were systemic problems and inequalities at work in Golan’s case that shine a light on the courts writ large.

First, by way of background, 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that establishes proceedings for the return of children removed from their home country. At present, there are a little over 100 signatory countries to the convention. Within the actual text of the convention, some terms are clear, and some are undefined. Still other terms and doctrines have been created by courts interpreting the convention.

In the United States, one such doctrine is “ameliorative measures.” This court-created principal allows for the return of a child to his or her habitual residence even in cases where grave risk of harm is established. In other words, even if a fleeing party has proven by clear and convincing evidence that the child would be exposed to extreme physical and/or psychological harm if returned, the court has the discretion to implement ameliorative measures in an effort to reduce the harm that the child will be exposed to upon return. Thus, in America, court-made ameliorative measures may “eat the rule” of grave risk of harm, which are literally written into international treaty’s text, approved by all co-signing nations, if a court believes it can fashion ameliorative measures to increase the safety of the child and parent upon return to their habitual residence.

The primary problem with this concept is the court in the jurisdiction to which a child is returned from the American court is not prevented from ignoring or changing the ameliorative measures upon return.

In Golan’s case, shortly before her death, in a recorded telephone call available on YouTube, her husband threatened that once her son was returned, he would move past the ameliorative measures in a month.

Simply put, the ameliorative measures doctrine is dangerous. Michael Scharf, professor of international law and dean of the school of law at Case Western Reserve University in Cleveland, has said of ameliorative measures and of this case specifically, “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.” I suggest that Golan’s case is illustrative of not heeding that common sense approach.

When Congress enabled the convention in the United States, it used different standards than other countries. The Supreme Court’s handling of this case is problematic because while other signatory countries use the same evidentiary standard, or burden of proof, for the elements of these cases (habitual residence and grave risk of harm), the Supreme Court uses an increased burden of proof for both determinations. Once the standard civil burden, preponderance of the evidence, of determining habitual residence was met by the child’s father, Golan then had to meet the highest civil standard of proof, that of clear and convincing evidence, to establish the grave risk of harm exception to return, if she and her son were to avoid being returned to Italy.

Golan surmounted the challenge of proving grave risk of harm which, under the express terms of the treaty, should have blocked her return to Italy and resolved the Hague Petition completely, allowing her and her son to stay in America. But that did not happen. In the 2nd Circuit, Golan was forced to meet yet another court-imposed standard, proving somehow, that ameliorative measures would not protect her and her son. This undefined, necessarily-higher-than “clear and convincing” standard, to avoid return under the ameliorative measures concept, was imposed by the district court judge, as directed by the 2nd Circuit.

Following her 9-0 victory at the Supreme Court, Golan’s case was remanded back to the district court and she was again ordered by the same judge, from which Golan appealed in the first place, to return to Italy under the same terms, to the same husband, who denied her a Jewish religious divorce, who beat her and humiliated her routinely, and who apparently sexually abused her regularly. How did this happen? Why was all of this not foreseeable? How did the Supreme Court not understand the innate illogic of ameliorative measures in the first place? How did the Supreme Court fail to understand the legal shortcomings of their collective logic?

In contrast to many other countries where abduction cases are heard by designated Hague Courts and specialized judges, in the United States, most federal judges who hear cases like Golan’s have limited, or no experience at all, with the convention, or family law. These federal judges are nominated by the president and confirmed in the Senate.

Unelected judges may have no practical experience working with domestic relations clients or even having practiced law at all. Yet, these same people are the ones who decide the most intimate details of people’s lives, children’s custody, and everything that comes up in scope of human endeavors. How do the people hearing the cases understand the nuances of what is going on if they have had no practical experience with the subject matter themselves? These questions are relevant to those we elect to state judgeships, and to those state judges appoint, too.

I have been teaching family law for 20 years. Routinely, I tell my students that politically active citizens spend too much time focusing on national politics. Yet, the government touches most people’s lives through its judges. We need to ask ourselves, what real world legal and practical experience do judicial candidates have with children, finance, or even the basic practice of law?

For the sake of our families and society generally, let us ask, do we have qualified judges and judicial officers making rulings for the most vulnerable in our society?

Golan deserves an answer.

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

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.

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

Legal issues of traveling with children

By Andrew Zashin*

Summer is almost here and many families will take vacations near and far. While the thought of traveling with children – small children, in particular – can be daunting, the legal aspect does not need to be scary.

Special permission for travel is usually only necessary if you will be crossing international borders. While it can never hurt to travel with a copy of a child’s birth certificate and other important documents, like custody, guardianship or adoption papers, if you are driving domestically, you will likely face no issue or question.

The one notable exception would be if you have a custody order that limits or puts special restrictions on travel with the child. In that case, you will want to make sure you follow your divorce or other custody order.

As for air travel, the Transportation Security Administration similarly does not require identification or any special consent for children traveling accompanied on domestic flights. Children under the age of 13 can undergo modified screening procedures that are intended to be less scary, however older children must go through the same process as an adult.

Rules for children flying unaccompanied vary from airline to airline. Some form of identification may be required, at least for older children, and it’s always a good idea for an unaccompanied child to travel with some form of identification, whether a birth certificate, passport, driver’s license, school ID or similar form.

No matter the method of travel, if the travel will be with someone other than a parent or guardian, it is smart to give the chaperone a letter of consent so it is clear he or she is authorized to travel with the child. In fact, with group trips, such as those organized by a school, religious or other group, some form of permission slip will likely be required.

International travel is a bit more complicated. The website for the U.S. Department of State contains important travel requirements that vary from country to country. In general, if the child will be traveling internationally, a passport will usually be necessary just as for an adult.

If the child will be traveling with only one parent or guardian, it is useful and sometimes required for the traveling parent to travel with a letter of consent signed by the other parent. This letter is not a specific government form, but should clearly spell out the travel being permitted and identify as much detail about the travel plans as possible.

To obtain a passport for a child, both parents or guardian must consent. The only times a passport can be obtained unilaterally is if the parent applying for the passport can show that he or she has sole legal custody of the minor, such as by a divorce or custody decree, some other order authorizing the issuance of a passport, a birth certificate listing the requesting parent as the only parent or guardian, or a death certificate showing the death of the non-requesting parent.

This article originally appeared as a column for 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.

Halle Berry’s Violent Custody Battle: Domestic Violence and Child Custody

Halle Berry’s personal family saga continues to evolve (see our previous posts on Berry’s child custody case here and here, and a related one involving Kelly Rutherford.) Just a few days ago, on Thanksgiving Day, a fight broke out between Gabriel Aubry, the father of Berry’s daughter Nahla, and Olivier Martinez, Berry’s fiancée. Apparently, Aubry was arrested at Halle’s house after allegedly pushing Olivier and striking him in the shoulder. (Martinez apparently defended himself by punching Aubry in the face – and sources differ as to whether Aubry was rendered unconscious from the blow.)

This comes at a particularly interesting time for Berry as she just failed in an attempt to get a court to grant her permission to relocate with her daughter to France, where Martinez lives. Does this violent episode help her? Does it hurt Aubry in the eyes of the court with regard to child custody? If a court finds that Aubry committed domestic violence will it help Berry get out of the country?

Having worked with many domestic violence cases, the first question that must be asked is this: is this incident domestic violence? Domestic violence laws vary from state to state, but, generally speaking, they are designed to protect family members from violence that might be perpetrated against them by other family members. The laws generally can be enforced through either civil courts or criminal courts. Where a court finds domestic violence (“DV”) to have occurred, broad remedies are available to protect family members. This could mean that someone is summarily evicted from their home. Financial arrangements could be made to protect vulnerable parties. Temporary protection orders could be issued against alleged perpetrators prohibiting them from trying to be anywhere near protected parties. These remedies can be applied at an ex parte hearing (a hearing without the opposing party present to defend himself or herself.) Shortly thereafter, such orders can be made more “permanent” at a full hearing where the accused is given a chance to appear and defend himself/herself.

Back the Berry’s story, according to news reports Aubry is being charged with some sort of criminal assault. He is also restrained from going near Berry, Martinez, or Nahla. So, is this domestic violence? Or is this just a case of criminal assault and battery? The answer may turn on whether or not a court considers Martinez to be a family member. In answering this question, where Martinez lives is relevant. If he simply stays with Berry in Los Angeles when he is not in France, that may not be enough for protection under the relevant DV laws.

Does a DV hurt someone’s attempt to get companionship rights with their child? Will this hurt Aubry regarding getting access and time with his daughter if a court finds that this episode is DV? Maybe. Maybe not. A finding of domestic violence, whether civil or criminal, could detrimentally impact a court’s determination of custody and access. But a court should consider against whom the violence occurred. If the DV was perpetrated against the child at issue it will matter more than if the violence that (allegedly) occurred was against only the fiancée.

Here, it appears that the violence occurred between Aubry and Martinez, and the child was not involved. Therefore, even though news reports indicate that Aubry is restrained from being near Berry, Martinez, or Nahla, those restraining orders may have been issued on an emergency and temporary basis. The reality is that the temporary restraining orders (“TRO”s) may be dissolved soon, especially the one against Nahla.) However, it is also likely that the court will not only consider, but frown upon, Aubry’s behavior if it is established that he was violent towards Martinez. But because the violence was not directed toward the child this incident may well have no impact on the overall child custody case.

So, ultimately, is this event likely to hurt Aubry with regard to Berry’s attempt to leave the country? If this case had taken place in Ohio (interestingly, Berry is originally from the Cleveland area) a number of protections against Aubry could have been put into place. For example, Aubry could have been ordered into counseling. He could have been prohibited from contacting, even via a third party, Berry, and even his daughter. And, if an act of domestic violence is established under Ohio Revised Code 3113.31, the civil law controlling domestic violence, or its counterpart under the criminal codes, that act of violence should be considered by a court not only as a reason against finding that a shared parenting plan is appropriate but also as a major factor in determining an appropriate parenting schedule.

At our firm we have lectured to other lawyers and consulted with many clients about this exact issue, and we have handled many cases where domestic violence intersects with child custody and shared parenting issues. These are tough cases. Findings of domestic violence do not help people seeking shared parenting with their children, and can impair their access to their children. But a finding of domestic violence it is often not fatal. This reality is good or bad depending on your perspective, either as the accused or as the alleged victim.

Finally, as we discussed in another blog entry, the reason Berry was not permitted to relocate to France was because the move would limit Nahla’s access to her father. That is true whether or not Aubry acted violently toward Martinez. Therefore, at the end of the day it is unlikely that this event will help Berry relocate from the United States to France. But, it most certainly could come back to haunt Aubry if (or when) he seeks to expand his parental access to Nahla. A court might find – and perhaps reasonably so – that if one cannot avoid a violent outburst when one comes to pick up one’s daughter, he may not be able to effectively co-parent with the mother of his child.

What You Can Learn From Halle Berry’s Failed International Child Relocation Attempt

According to media reports Halle Berry sought a court’s permission to move with her daughter Nahla to France against the wishes of the child’s father, actor/model Gabriel Aubry. Berry is apparently engaged to another actor, Olivier Martinez, who lives in France. The court denied Berry’s request to relocate. For anyone considering relocating with their children against the wishes of the other parent, there are some important takeaways from Halle Berry’s failed relocation attempt.

Prior to issuing a ruling the court sanctioned a psychological evaluation. The evaluation concluded that Nahla’s best interests were served if her mother primarily cared for her. Reports indicated that although Aubry loved his daughter he was not as able to take responsibility for her day-to-day care. Psychological reports like these are commonplace in contested custody cases and in relocation cases. When they do not settle, relocation cases like this often turn into complex and expensive duels between mothers and fathers, their psychological experts and sophisticated family law attorneys.

Upon close examination, the Halle Berry/ Gabriel Aubry situation bears considerable similarities to another celebrity relocation case, that of the Kelly Rutherford (see our previous blog entry on the Kelly Rutherford custody order). In both cases the respective courts found that keeping the parents in close proximity to one another was the most important aspect of furthering the best interests of the children involved. In the Rutherford case that meant the children were required to move to France. In the Berry/Aubry case the court determined that the child should not move to France. Although Berry could move to France without her child, such an outcome is unlikely. Thus, as a practical matter, Berry was ordered to stay in Los Angeles even though the court determined that her parenting best served Nahla’s interests.

Without explicitly ruling so, the Berry/Aubry court is implicitly prohibiting Halle Berry’s relocation, contrary to her wishes. Does it matter that Halle is engaged to a man in France? Not so much. What should one take away from this? Of course every case is different and there are many nuanced issues subject to consideration on many levels. But there are also several immediate takeaways for anyone interested in issues like this:

1.) A parent’s desire to relocate children against the will of the other parent often fails. Courts are loath to separate children from their parents. This is true even when the parent wanting to move is the “better parent.” Experience suggests that this is also usually true even when the not-as-good parent is a human train wreck. Children should be in close proximity to their parents whenever possible.

2.) Children, by the time they are 6 or 7, have their own social network. Disturbing that network is not just disruptive, but it is considered unhealthy for children. Therefore a party that wishes to relocate with the children needs a persuasive reason to move them. Moving a child across a city to a different school system is traumatic. Moving a child to another state is even more traumatic, especially when it negatively impacts the amount of time a parent can spend with their children. Relocating overseas is a dramatic change of environment. Therefore the reason for the move must be of a similar magnitude. The reason must be truly compelling.

3.) If you want to relocate, as a general rule, you better have a damn good reason! The greater the distance the more compelling the reason should be. Getting married usually is not enough. A court might say that the remarrying parent should make the new spouse move. Getting engaged just isn’t enough. Halle Berry also tried this as a reason: the paparazzi were creating danger for Nahla. The paparazzi are too dangerous?? Halle Berry is hardly the only celeb in LA. A court would tell her to move to a smaller town in CA before it allowed a move for this reason (or perhaps she could try to move somewhere not quite so far away, like back to her hometown of Cleveland). Or it could tell her to quit her profession and lower her profile. But the danger created by paparazzi is not enough to warrant separating a girl from her father.

4.) None of the above should suggest that a parent can never relocate with a child. People come to us all the time to help them move. It can be done. We have represented people whose children would fly overseas between parents. This example illustrates our contention that every case needs to be considered on its individual merits. A winning approach is to spell out solid reasons for the move from the outset of the case and propose workable solutions to the problems that the move creates. If you can do this then you are then on your way to persuading the court to allow you to relocate.

2023-11-10T13:38:17-05:00November 15th, 2012|Child Custody, International Custody, Relocation|
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