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Super Lawyers Magazine

Forward March | Two decades have brought big change—including a Hague custody niche—to Zashin & Rich

December 20, 2022 | By Carlos Harrison

Super Lawyers Magazine: Forward March | Two decades have brought big change—including a Hague custody niche—to Zashin & Rich

Two decades ago, when Andrew Zashin suggested taking on Hague Convention international child-custody cases, his father, Robert, didn’t exactly see the upside.

Robert had co-founded the Cleveland family and employment law firm now run by sons Andrew and Stephen. “He said, ‘I just don’t see how this is going to work. There aren’t enough cases,’” recalls Andrew, the elder son. “I said, ‘Dad, there are more than people realize.” The problem, he said, was that lawyers and courts often confused them with standard relocation cases.

At the time, Zashin & Rich had an established and growing reputation in high-net-worth divorce cases, and the firm had done international family law work but never handled a Hague matter. Andrew couldn’t have foreseen the impact his firm would have in helping define U.S. law in this extremely specialized area.

“One of my professors in college said, ‘Trying to get a case into the Supreme Court is like trying to commit suicide by running around in a rain storm with a television antenna on your head; it’s that hard,’” he says. Yet two of Andrew’s Hague cases have gone before the U. S. Supreme Court—out of only five Hague matters the court has ever heard. The most recent was decided last January.

The Hague Convention on the Civil Aspects of International Child Abduction stipulates that a child taken to or kept in a foreign country without the permission of someone with custody rights must be returned to the place of “habitual residence” to resolve the dispute. There is, however, an exception for a “grave risk of harm” to the child’s physical or psychological well-being that overrides the return to habitual residence.

When Robert, a fifth grade teacher who had moved to Cleveland to work by day and attend law school at night, established the firm in 1981, he found his calling in divorce law, then built the practice into a powerhouse with a national reach.

Andrew’s entry into the profession was in his blood—on both sides. His maternal grandfather was also a lawyer. Family law came just as naturally. His dad took him to the office, and to court.

“Every day was take-your-son-to-work day,” Andrew says. “So, family law—I didn’t know there was anything else.”

After he passed the Bar, he dove into the family law practice, and found niches that could differentiate the firm. It now touts expertise in religious divorce issues ranging from Vatican rules to Islamic law. One of his Supreme Court cases involved the denial of a get, a Jewish religious divorce.

Andrew’s younger brother, Stephen, joined the firm a few years later, bringing the first major change to its direction by adding labor and employment law to its practice areas.

Then Andrew came across an article about a Hague Convention case. It involved a mother who removed her children from Israel, where they lived with their father, then filed for legal separation and custody of their two sons in Minnesota.

“I was so moved by the facts by which the children were removed,” Andrew says. “I thought it was so wrong to be making the claim that the home state was a war zone that I got in touch with the lawyer and I said, ‘What can I do to help this father?’” The attorney didn’t need any help in that case, Silverman v. Silverman, which ended in 2004 after an appellate court reversed a lower court’s decision and the children were returned to Israel. But it motivated Andrew to get involved in Hague Convention cases.

He was accepted for fellowship in the International Academy of Family Lawyers, started attending its conferences; and, later, began getting referrals from the U.S. State Department.

Almost a decade later, Michelle Monasky moved to Italy with her Italian-born husband. In 2015, they had a baby girl, and eight weeks later Monasky fled to the U.S., accusing her husband of domestic abuse and saying the couple had agreed to divorce by the time of the birth.

Her husband petitioned to have the child returned to Italy, and a U.S. District Court agreed. So did a federal appellate court. In 2020, the U.S. Supreme Court upheld the decision. “Every court came up with a different reason why she should lose,” says Andrew, whose client was the mother.

“The court came up with the Monasky test, which gives the district court complete discretion to do what it feels is best. In my opinion, that made things worse. Before Monasky, there were certain rules in different circuits. All the rules and precedence that used to matter—everything we used to know—no one knows what to do with it now.”

Shortly after that ruling, a U.S. District Court weighed in on a case concerning the Hague Convention’s “grave risk” exception. It states that return should be denied if doing so would expose the child to physical or psychological harm.

In Andrew’s second case that ended up before the U.S. Supreme Court, his client, Narkis Golan, accused her Italian husband, Isacco Saada, of being physically abusive throughout their marriage. In 2018, two years after their son was born in Milan, she took the boy with her to attend her brother’s wedding in the United States. She didn’t go back. Saada filed a criminal complaint demanding the boy’s return to Italy.

Following a then-standing 2nd Circuit Court of Appeals precedent, the district court ordered the boy’s return, conditioned on Saada’s agreement to “ameliorative measures” to ensure the boy’s safety, including getting therapy and staying away from Golan. However, at the same time, the 2nd Circuit vacated the order, saying there was “ample reason to doubt that Mr. Saada will comply,” and sent it back for the court to consider measures that could be enforced or sufficiently guaranteed.

After an investigation lasting nine months, and with the agreement of the Italian court to issue a protective order, the district court again ordered the boy’s return. This time, the appellate court affirmed the decision.

But the U.S. Supreme Court disagreed. The appellate court’s requirement that district courts must always consider all ameliorative measures before they could deny repatriation was “inconsistent” with the Hague Convention, Justice Sonia Sotomayor wrote. Faced with a “grave risk” situation, she wrote, district courts had the discretion to consider such measures or not, and to grant or deny return. However, she added, any such considerations must be handled expeditiously, to avoid unnecessary delay. The matter was returned to the lower court, which in Golan’s case again ruled that she should return her son to Italy. Zashin’s firm was not counsel at this point.

The two Hague decisions, Andrew says, “are literally bookends,” Monasky addressing the “habitual residence” provision; Golan addressing its primary exception, “grave risk.”

They’ve helped establish Zashin & Rich as an outsized player in the Hague Convention space.

“He’s one of the leaders—if not in the world, in the United States—in those kinds of cases,” says family law attorney James Loeb, a partner at Baker Hostetler. “He is our go-to guy for those cases.”

Zashin & Rich has also carved out an uncommon space in its sprawling fourth-floor office overlooking Lake Erie, in tribute to Cleveland’s rock ‘n’ roll roots.

Twelve circular light panels by the elevators slowly change colors; closer inspection reveals they’re drum heads. There’s a bright yellow bust of William Shakespeare bedecked in Kiss-style makeup. A flat screen streams music videos. Black-and-white photos of rock stars—all taken during visits or performances in the city—adorn the coffee bar: Devo, David Lee Roth, David Bowie. And the color scheme was inspired by the fluorescent yellow and pink Sex Pistols’ Never Mind the Bollocks album cover.

It was Stephen Zashin’s idea. “We’re headquartered in the Rock & Roll Hall of Fame city, as well as the place where the term ‘rock ‘n’ roll’ was coined,” Stephen says. “Our actual tagline is ‘Attorneys in tune. Service amplified.’”

Robert, who passed away in 2010, didn’t get to see the new offices or find out about the Supreme Court cases. But Andrew believes his father would have been more than proud.

“He would be amazed.”

Editor’s Update: Narkis Golan, 32, was found dead in her home on Oct. 18 and authorities were investigating.