The habitual residence case Taglieri v. Monasky, which focuses on a child born in Italy to Michelle Monasky, an Ohio native, and Domenico Taglieri, an Italian native, in 2014, and Monasky’s decision to leave Italy with her daughter amid marital unrest and spousal abuse, was heard by the U.S. Supreme Court on Dec. 11.
Andrew Zashin, co-managing partner of Zashin & Rich, which has offices in Cleveland and Columbus, traveled to Washington, D.C., with his team to represent Monasky in the hearing. A decision is expected by summer, Zashin said.
The hearing was the latest development in the case. The case began with two hearings in the 6th Circuit in Cincinnati, one in November 2017, where the court ordered the then 8-week old child’s return to Italy, and an en banc hearing in June 2018, where the court voted 10-8 in favor of the child remaining in Italy.
Zashin said the Supreme Court hearing the case will help bring clarity to habitual residence, which is the location where a child has spent most of his or her life, or where he or she has the deepest connection. This is part of the Hague Convention on the Civil Aspects of International Child Abduction of 1993. The treaty was designed to secure the return of children wrongfully removed to, or retained by, any member country and ensures the rights of custody are respected. Many countries have their own definitions of habitual residence, but individual U.S. circuit courts can define habitual residence any way they like, causing cases like Taglieri v. Monasky to arise.
With the hearing, Zashin told the CJN there are two clear questions in front of the court.
“The first issue is about what kind of legal review should be applied,” he said, saying it’s either clear error, which means that a trial court’s judgment appears unquestionably erroneous, or de novo, meaning the appellate court reviews the case as if it was considering it for the first time.
The second issue, Zashin said, is where “the rubber meets the road for human beings,” especially as it applies to the Jewish community and those considering making aliyah.
“For many people, in particular, the Jewish people, the idea of shared parental intent touches those who might come here from Israel or go to Israel for aliyah,” he said. “If you go to Israel with shared parental intent and someone wants to leave, or you’re here long enough to establish jurisdiction and one of the parents wants to stay, the question is does the shared parental intent change?”
But Zashin said “the most confusing thing” is how federal courts agreed on Monasky’s claim of spousal abuse and awarded her $100,000 in damages, but then also ordered the child, referred to as A.M.T., to stay in Italy.
“How do you reconcile those two things? She was a victim of assault and battery,” Zashin said. “She gets the $100,000 and leaves that judgment in America. Then, the same federal court that said they had shared parental intent to stay in Italy also affirms the assault and battery. It doesn’t make sense.”
Zashin is also part of the international law faculty at Case Western Reserve University’s School of Law. The school’s dean, Michael P. Scharf, and associate dean, Avidan Cover, co-wrote an Amicus Brief, a law brief in support of Zashin’s position on the case. It was the first-ever Supreme Court Amicus Brief submitted by the Cox International Law Center, Scharf said.
“The court invited us to submit the brief because of the center’s recognized expertise in international law,” Scharf told the CJN. “The brief argued that in interpreting the Hague Convention, the court should be guided by how international and foreign courts have interpreted the treaty.”
Within the brief, Scharf concluded the child did not acquire a habitual residence during her eight weeks in Italy, due to a less stable living situation because of the spousal abuse.
Zashin said the Supreme Court decision won’t be the end for the case. At the hearing, he said the team asked for the child to be returned to the U.S., which is “ideal.” The second best thing, he said, is that the case is sent down with instructions on further proceedings, leading to more litigation.
“If that is the case, the case won’t be over,” he explained. “One way or the other, the case isn’t done. If Michelle loses, she has to fight in the Italian court for more rights. And if she wins, Domenico has to come (to the United States) to fight for his rights. The custody case starts when the Supreme Court case ends. The case goes on somehow. It’s just a matter of how.”
Publisher’s note: Andrew Zashin writes a monthly legal column for the Cleveland Jewish News.