Custody Clarification

Cleveland family law attorney Andrew Zashin gets a 6th Circuit ruling that brings consistency to cases involving vulnerable children

Published in 2018 Ohio Super Lawyers — November 8, 2018

Although the 6th Circuit Court denied family law attorney Andrew Zashin’s appeal in a Hague Convention custody case, the court’s October ruling clarified case law for future Hague matters, and Taglieri v. Monasky may be appealed to the U.S. Supreme Court.

Just getting an en banc hearing by a full circuit court was an accomplishment. “This is only the second en banc Hague Case ever heard before a circuit court of appeals,” says Zashin, co-managing partner at Zashin & Rich. “So this case is extremely noteworthy.”

At issue was the concept of habitual residence—basically, in what country a child at the center of a custody battle belongs. The Hague Convention on the Civil Aspects of International Child Abduction calls for the return, by member nations, of children wrongfully removed from the country where they were living. The guiding principle is typically which country seems like home to the child, but other circuits have made exceptions for children too young or mentally disabled to have acclimated to a particular country. Until now, the 6th Circuit had not clarified its stance on cases involving these especially vulnerable children. With this ruling, it has adopted the standard of shared parental intent, based on which country the parents intended the child to grow up in.

“It is the first time the 6th Circuit has clearly articulated the legal standard for the habitual residence of infants and very young children and children with cognitive disabilities,” says Zashin. “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 6th Circuit, which now falls in line with the other federal circuits that have ruled on this issue.”

Zashin’s client, Michelle Monasky, a U.S. citizen, moved to Italy in 2013 with her Italian-born husband, Domenico Taglieri—whom she had met while they were studying at the University of Illinois at Chicago. Monasky says their marriage was ostensibly over by the time she gave birth to a baby girl in 2015, after alleged domestic abuse and a fight in which they agreed to a divorce. Monasky says Taglieri was aware that she would be leaving Italy. Taglieri, meanwhile, contends they merely had a disagreement, not a discussion of divorce.

Monasky had to stay in Italy until she could get a passport to bring the 8-week-old baby to the United States. Taglieri petitioned under the Hague Convention’s child-custody rules to have the baby returned to Italy, and the U.S. District Court for the Northern District of Ohio agreed with the father.

Monasky’s appellate team, in addition to Zashin, includes Zashin colleagues Amy Keating, Aiden Taft Grano and Christopher Reynolds; Christopher Baum, Amir Tayrani and Melanie L. Katsur with Gibson Dunn & Crutcher’s Washington, D.C. office; and Joan S. Meier, professor of clinical law at George Washington University Law School. The appeal to a 6th Circuit panel was unsuccessful, and an emergency petition for stay was filed with the U.S. Supreme Court, which declined to take the case, and the baby was sent back to Italy. The legal team then requested a rehearing by the full 6th Circuit.

The two 6th Circuit judges dissenting from the court’s Oct. 17 ruling said the case should have been reviewed based on the standard of shared parental intent, rather than by deferring to the trial court, which issued its ruling before that standard was clarified. This will be the basis of the appeal to the high court.

“The standard used could be the difference between the child remaining in Italy or being potentially returned to the United States,” says Zashin, “and thus, which country has jurisdiction to determine custody.”

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