A habitual residence case involving a local family practice law firm is heading to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. It will be the first time a habitual residence case is heard by a U.S. Court of Appeals – and the outcome may hold implications for Jewish families making aliyah.

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 habitual residence is defined by the parent or by the child, age depending, is a matter of debate. 

En banc proceedings, which is when a court case is heard before all of the judges of a court rather than by a panel of judges selected from them, began June 13 for the case, Taglieri v. Monasky. There is no timetable for how long the proceedings will take.

“It’s extremely exciting that we handle this sort of thing in Ohio,” said attorney Andrew Zashin,

co-managing partner of Zashin & Rich, the firm that will represent the defendant in the case. “It’s a rare type of legal surgery for family attorneys. Family lawyers almost never see federal courts.”

Taglieri v. Monasky will mark the second time a Hague Convention case will be heard by an en banc panel. The Hague Convention on the Civil Aspects of International Child Abduction of 1993, developed by the Hague Conference on Private International Law, is a treaty designed to secure the return of children wrongfully removed to or retained in any member country and to ensure the rights of custody are respected.

In Taglieri v. Monasky, a child was born in Italy to an American mother, Michelle Monasky, and Italian father, Domenico Taglieri, amid marital unrest and alleged spousal abuse. According to the court documents, Monasky intended to leave Italy as soon as possible after birth, but was delayed while waiting for the child’s passport. After the marital unrest climaxed, resulting in Monasky and the child being placed in a domestic violence safe house, she secured the child’s passport and left for the U.S. with her daughter.

In a November 2017 trial in which Zashin & Rich represented Monasky, the court ordered the 8-week-old child be returned to Italy. Taglieri’s team made the argument that the child’s ties were strongest to Italy rather than the U.S. 

On appeal, Zashin & Rich worked to establish a legal standard, particularly regarding when a child is too young to form meaningful connections and acclimatize to a particular place to establish habitual residence. 

The appeal resulted in a divided appellate court that created a legal standard that did not match with any prior case or precedent, leading the firm to seek the June en banc hearing.

‘NOVEL LEGAL ISSUE’

Zashin, as well as Zashin & Rich attorneys Amy Keating and Christopher Reynolds, said all the ins and outs of the case compelled them to get involved in the November 2017 hearing and later assist in the landmark en banc hearing.

All three work out of the firm’s Cleveland and Columbus offices and are fellows of the American Academy of Matrimonial Lawyers.

“I was interested in the first case that got to this level, Silverman v. Silverman,” said Zashin, who is also an adjunct professor of advanced family law and international law at Case Western Reserve University’s School of Law in Cleveland. “It was about a couple that made aliyah, where the mother was from Minnesota and the father was from South Africa. The family made aliyah and the mother decided she did not want to remain in Israel. Her legal argument was living in Israel met the legal standard of ‘a grave risk of harm,’ which is an exception to return under the Hague Convention. She decided to leave for the U.S. (with their children), and the father told her Israel was their home and she needed to come back.”

Zashin said this inspired his interest in international law, and since then, Zashin & Rich has become a “powerhouse” as a standalone international family practice. While Monasky v. Taglieri doesn’t involve making aliyah, he believes this case will be relevant to Israeli and Jewish custodial rights.

Reynolds said the clients came to the firm because of their experience in a previous case.

“Comparatively speaking, there aren’t many other family law attorneys in this area – or even in the country – that are comfortable handling this type of case, and we are,” he said. “There isn’t a defined legal standard for determining a ‘habitual residence,’ central, legal concept in Hague law in the United States. We have a roughly 8-week-old child, and we’re saying this is not only factually terrible and we want to help her, but this is also a very novel legal issue.”

Keating said in this case, the firm had an “interesting combination” of wanting to help and also having a legal interest.

“It’s always interesting getting involved in something that is different, new and challenging,” she said. “I had experience in other international cases and they were interesting stories. We knew that this was going to be complicated and different from other Hague cases.”

POTENTIAL ALIYAH IMPLICATIONS

Further explaining why he thinks the case could affect families making aliyah, Zashin said it’s common for a parent to decide he or she no longer wants to live in Israel after the decision is made.

“If one person wants to stay in Israel and the other doesn’t want to, the declaration they made saying they are a resident of Israel should stand,” Zashin said. “They made the determination that they wanted to be part of the Jewish state. Why should the left-behind parent have to chase the other parent everywhere to catch up with them and the child, especially when the parents had jointly determined that Israel was their place of residence? The act of making aliyah, at its core, is one of intent.”

OTHER CASES HANG IN BALANCE

Both Keating and Reynolds hope the en banc ruling brings clarity for future Hague Convention cases.

“If they come down and the Sixth Circuit agrees that this is the standard, it brings uniformity,” Reynolds said. “If they believe some other standard is appropriate, and by their own conscience and judgment believe that shouldn’t be what the other five circuits have done, we will be in a period of disarray.

“As normal everyday citizens, these are things we don’t think much about. But we live in a very mobile society, and talking about the Jewish community with people making aliyah ... that (can be) stressful. What happens when marriages fall apart? What about the children?”

Keating said no one wants to think about their relationships going sour when making aliyah, but attorneys have to consider every situation.

“You need to think about what state you go to because that could have a significant outcome in a future case. That is the concern we have as attorneys,” she said. “The goal is trying to create a consistent result. Again, we are a mobile society. Especially in Cleveland, people come here for many different opportunities, and then they enter relationships and things go the way they do. But as the world becomes smaller, these issues are going to happen more often and we’re going to have to deal with consequences.”

Visit cjn.org to stay up to date with the proceedings of this case.


Publisher’s note: Andrew Zashin writes a monthly legal column for the Cleveland Jewish News

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