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.