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.

Back to the Supreme Court We Go

By Andrew Zashin*

I and my team are back in the Supreme Court of the United States with an epic case that will be heard March 22, 2022.

I am proud to say that this is not our first rodeo at the Supreme Court.

Golan v. Saada is the fifth 1980 Hague Convention on Child Abduction case ever heard, and it turns on a central issue to the treaty, specifically the Grave Risk of Harm exception to return to a child’s Habitual Residence (Article 13(b)). We represent the Petitioner, a mother, who is the victim of domestic violence. The court has already determined that there exists a “Grave Risk of Harm” if the mother and her child are returned at least without some truly meaningful and enforceable ameliorative measures.

Previously, in Monasky v. Taglieri, we represented the Petitioner in the fourth 1980 Hague Convention on Child Abduction ever heard. The central issue in Monasky was Habitual Residence, the threshold issue in The Hague treaty. In the determination of Habitual Residence of an eight week old girl was the focus of the case.

Monasky is, and Golan will be, critical to interpreting the Hague Treaty in the United States, and no doubt, in the courts of foreign countries.

We continue to try to educate the court and jurists about matters they seem to know nothing about in the real world and over which they wield so much power over so many lives.

Yes, the world is often an unfair place.

We strive to even the playing field when we can.

Click here for a copy of the brief.

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.

Go to Top