WASHINGTON, D.C. - How should courts decide where a newborn will live when her parents are involved in an international custody dispute?
The U.S. Supreme Court will help figure that out Wednesday, as it weighs the case of a Northeast Ohio woman who had a baby in Italy with a husband she was divorcing amid claims of physical abuse.
At issue is custody of the four-year-old daughter that research biologist Michelle Monasky had in Italy with her former husband, Italian anesthesiologist Domenico Taglieri. Legal papers say the couple had a rocky relationship that included domestic violence. In April 2015, before the child was eight weeks old, Monasky and the baby moved into her parents’ home in Painesville. Taglieri sought custody of the baby, claiming Monasky abducted her.
In 2016, Cleveland-based U.S. Judge Solomon Oliver Jr., ruled the child should return to Italy because that was her “habitual residence” under the Hague Convention on child abduction. Monasky returned to Italy to be near the child, who is called “A.M.T” in legal papers, while custody lawsuits continued. Monasky’s attorney, Andrew Zashin, says she has limited visitation rights with the child in a “totally unjust situation."
A 2017 decision by the the Sixth Circuit U.S. Court of Appeals ratified the child’s transfer to Italy, upholding Oliver’s determination that Italy was the child’s “habitual residence” and ruling that Monasky didn’t prove any “grave risk" to A.M.T. because of the past domestic abuse allegations against Taglieri. Monasky appealed the case to the U.S. Supreme Court, contending that the baby’s “habitual residence” was decided incorrectly because the couple hadn’t decided where to raise the child and the child was too young to be attached to Italy when she left.
“This woman was subjected to domestic violence,” said Zashin. "There is no way to separate that when you consider shared parental intent. As soon as she was able to physically leave, she left with an 8-week-old and filed for divorce.”
A brief filed by U.S. Solicitor General Noel J. Francisco said the appeals court did not properly review how the child’s habitual residence was decided and that court should vacate the appellate decision.
Organizations for family lawyers filed legal briefs to express concern that reversing the lower court decisions will undermine the return of children who are abducted in custody disputes, while a coalition of groups that fight domestic violence argued that upholding the lower decision would force parents who flee domestic violence to turn their children over to abusive partners.
Taglieri’s lawyers say the appeals decision should be left intact. They said that ordering the return of a child to his or her country of habitual residence does not determine the final custody arrangement for the child; it “allow[s] the courts of the home country to decide what is in the child’s best interests.”
“The district court focused part of its analysis on evidence relating to the parents’ intent, finding based on that factor that Italy was A.M.T.’s habitual residence,” say Taglieri’s legal briefs. “There is no basis for disturbing that determination.”
A Cleveland-based attorney for Taglieri, John D. Sayre, said he believes the court might have taken the case because it wants “to announce some definite standards to eliminate some of the confusion" in adjudicating international custody matters that involve infants. If the court decides that A.M.T’s habitual residence was incorrectly decided, Sayre said Oliver would have to review his decision.
Zashin said his client hopes the Supreme Court’s decision will result in the child’s return to Ohio.
“Sense, decency and justice are on our side,” said Zashin.
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