Taglieri v. Monasky arose under the Hague Convention of Civil Aspects of International Child Abduction which mandates that a wrongfully removed child must be returned to their country of habitual residence.[i]While the case has been vacated upon rehearing by the Sixth Circuit, the Court temporarily held that the child at issue–A.M.T–had a habitual residence in Italy after applying a new standard to the facts at hand.[ii]Since the opinion has been vacated, however, it is expected that the Sixth Circuit will revert back to the original standard used to determine what a child’s “habitual residence” is under the Hague Convention.
The facts of the case are as follows: in 2011, the plaintiff and defendant married.[iii]Prior to this point in time, Taglieri, the plaintiff, had moved to Italy and made it clear to his future wife, Monasky, that he considered Italy to be his long-term destination as Italy was the location in which he was licensed to practice medicine.[iv]Despite his displayed preference for Italy, Taglieri indicated that he may still be open to considering work in the United States.[v]After the couple married, Monasky became pregnant in 2014.[vi]Unfortunately, however, the marriage was not a happy one: prior to Monasky’s pregnancy, there had been instances of sexual abuse and domestic violence.[vii]The situation did not improve after the birth of their daughter: following an emergency c-section for which Taglieri almost missed, the couple renewed their discussions pertaining to the possibility of obtaining a divorce.[viii]
After Monasky (an American citizen who spoke very little English) spent time researching Italian divorce law, she contacted an Italian divorce lawyer.[ix]Before anything could come from her efforts, however, the two had another argument, ending with Monasky slamming the table and Taglieri raising his arm as if to strike her with “a terrible look on his face that frightened her.”[x]After this point, Monasky took their child –A.M.T.– to the police, reported her husband, and sought refuge in an undisclosed safe house.[xi]Shortly thereafter, Monasky obtained an American passport for her eight-week old daughter and left Italy on April 15, 2015, for the United States.[xii]
Upon review of the case, the Sixth Circuit clarified that a petitioner seeking the return of a child must establish, “by a preponderance of the evidence, that the child has been wrongfully removed or retained within meaning of the [Hague] Convention.”[xiii]Applying that standard to the facts at hand, the court noted that the “initial critical question . . . [was] whether Taglieri has established that A.M.T. was removed in breach of the law of the State in which she was habitually residing.”[xiv]The majority concluded that when a child has lived in one place for their entire life, that place is presumptively the child’s place of residence.[xv]On the other hand, when a child has alternated residences between two or more nations, the Court must determine whether the child has acclimated to life in the second nation.[xvi]If so, that nation is thus the child’s habitual residence.[xvii]If, however, the child is too young such that acclimation is not possible for lack of cognitive development, the parent’s intent is taken into account.[xviii]Upon application of the standard to the case at hand, the majority found that A.M.T.’s habitual residence was Italy.[xix]
The dissent, however, took a different view, claiming that the majority had re- characterized the Sixth Circuit’s prior opinions with respect to the habitual residence issue.[xx]Condoning the majority’s application of a “formalistic, rigid, bright-lien rule that a child’s habitual residence is her country of birth if she has exclusively resided in that country of birth if she has exclusively resided in that country.”[xxi]In doing so, the dissent claimed that the majority contravened preceding case law indicating that “‘[t]he facts and circumstances of each case [must] . . . be assessed without resort to presumptions or presuppositions.'”[xxii]
[i]Taglieri v. Monasky, 876 F.3d 868, 871 (6th Cir. 2017)
[ii]Id. at 879.
[vii]Id. at 871- 72.
[viii]Id. at 873.
[x]Id. at 874.
[xiii]Id. at 875.
[xvi]Id. at 876.
[xviii]Id. at 876.
[xix]Id. at 882.
[xx]Id. at 879.