Taglieri v. Monasky, 16-4128

• Decision Date: 30 November 2017
• Docket Number: No. 16-4128,16-4128
• Parties: Domenico TAGLIERI, Plaintiff-Appellee, v. Michelle MONASKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

876 F.3d 868

Domenico TAGLIERI, Plaintiff-Appellee,

v.Michelle MONASKY, Defendant-Appellant.

No. 16-4128

United States Court of Appeals, Sixth Circuit.

Argued: May 3, 2017

Decided and Filed: November 30, 2017

Rehearing En Banc Granted, Opinion Vacated March 2, 2018

ARGUED: Christopher J. Baum, GIBSON, DUNN & CRUTCHER, LLP, Washington, D.C., for Appellant. John D. Sayre, NICOLA, GUDBRANSON & COOPER, LLC, Cleveland, Ohio, for Appellee. ON BRIEF: Christopher J. Baum, Amir C. Tayrani, Melanie L. Katsur, GIBSON, DUNN & CRUTCHER, LLP, Washington, D.C., Christopher R. Reynolds, Amy M. Keating, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, for Appellant. John D. Sayre, Amy Berman Hamilton, NICOLA, GUDBRANSON & COOPER, LLC, Cleveland, Ohio, for Appellee. Rachel G. Skaistis, CRAVATH, SWAINE & MOORE LLP, New York, New York, for Amicus Curiae.

Before: BOGGS, MOORE, and McKEAGUE, Circuit Judges.

BOGGS, J., delivered the opinion of the court in which McKEAGUE, J., joined. MOORE, J. (pp. 879–84), delivered a separate dissenting opinion.

BOGGS, Circuit Judge.

Our decision in this case is controlled by the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("Convention" or "Hague Convention"), which dictates that a wrongfully removed child must be returned to the country of habitual residence. Our precedent has demonstrated that where a child lives exclusively in one country, that country is presumed to be the child's habitual residence. In fact, we have gone so far as to call such cases "simple." Because we hold that in this case the country of habitual residence is Italy and that there is no grave risk of harm to the child under the meaning of the Convention, we must affirm the district court's judgment ordering the return of A.M.T. to Italy under the Hague Convention.

I

Domenico Taglieri, a citizen of Italy, was studying for a doctoral degree at the University of Illinois at Chicago, when he met Michelle Monasky, an American citizen who was joining his research team. The two colleagues began dating and eventually married in September 2011. Taglieri received his Ph.D. in 2011 and obtained a post-doctoral appointment at the University of Illinois at Chicago. The two made the mutual decision to move to Italy to pursue career opportunities, with Taglieri leaving first in February 2013. According to Taglieri, he had made it clear that he considered Italy to be his long-term destination, as he was licensed to practice medicine in Italy and would have had to acquire certifications and meet onerous requirements to practice in the United States. But in an e-mail Monasky sent to Taglieri in April 2013, she wrote: "don't think that [the fact that we are moving to Milan or Rome] means we are done with the US [for good.]"

Taglieri began working at a hospital in Palermo, Italy, in February 2013. In June 2013, he switched to a new position as an anesthesiologist at Humanitas Hospital in Milan. The next month, Monasky moved to Italy to join Taglieri in Milan. She received a fellowship with Università Vita Salute San Raffaele in Milan in September 2013. In April 2014, Monasky was given a two-year fellowship with Humanitas Hospital, with a significant increase in pay. Taglieri had a one-year contract with Humanitas Hospital, which the hospital did not offer to renew, and he began looking elsewhere for a new position. In June 2014, he secured a permanent position with Maria Cecilia Hospital in Lugo, a city outside of Ravenna that is about two hours and forty minutes by car southeast of Milan. In addition, he found an apartment in Lugo where he could stay during the workweek.

Monasky became pregnant in May 2014. According to Taglieri, the couple had decided to start a family and try for a child. Monasky disputes this description, stating that she had become pregnant despite her wishes because of Taglieri "becoming more aggressive with sex." She recounts in particular one occasion where Taglieri allegedly got on top of her and insisted, "[S]pread your legs, or I will spread them for you." In addition to sexual abuse, Monasky alleges that Taglieri frequently slapped or hit her with force, causing her to grow increasingly fearful. Taglieri acknowledges "smack[ing]" Monasky once in March 2014, but denies that he struck her again after that time. The district court in this case concluded that Taglieri had "struck Monasky on her face in March 2014," and found Monasky's further testimony with respect to the domestic abuse credible.

Tension was increasing in the marriage for other reasons in addition to the physical and sexual abuse. The long-distance arrangement of Taglieri's frequent travel and stays in Lugo while Monasky was in Milan put greater strain on the marriage. Furthermore, in accordance with Italian law, Monasky was required to suspend her work and go on maternity leave in January 2015, in anticipation of the upcoming birth of her child. She encountered difficulties in having her academic credentials recognized by Italy, to the degree that she wrote to the United States Senator of her family's home state of Ohio for assistance. Monasky did not speak much Italian and had significant problems performing basic tasks, such as calling someone to fix the electricity, as a result. Finally, her pregnancy was medically complicated, with Monasky suffering a near-miscarriage early on.

All of these stressors produced a rocky relationship. Monasky applied for jobs in the United States, contacted American divorce lawyers, and researched American health- and childcare options. But the couple also investigated Italian child-care options and discussed purchasing items for the baby, such as a stroller, car seat, and night light. Monasky sought an Italian driver's license and she and Taglieri moved to a larger apartment in the Milanese suburb of Basiglio under a one-year lease under Monasky's name (with the option to break the lease on three months' notice). By January, "emails between the parties, reflecting words of affection, suggest that their relationship was less turbulent than before." Serenity, if it did exist, was short-lived. In early February, the two began "having a lot of fights," and arguing over how the birth would proceed. Monasky e-mailed Taglieri regarding a possible collaborative divorce. At the same time, she sought quotes for the cost of moving to back to Ohio.

At a subsequent pregnancy-check-up appointment in mid-February, doctors recommended that labor be induced. Monasky declined and the two left despite Taglieri's protestations. According to Taglieri, he was angry, concerned, and embarrassed that Monasky had refused the procedure, rejected the advice of fellow physicians, and declined to stay at the hospital. During the forty-minute ride home, the pair argued over Monasky's decision. Minutes before they arrived at their apartment, Monasky told Taglieri that she had begun experiencing contraction-like pains and asked him to bring her back to the hospital. Taglieri refused, advising that they should wait and see how things progressed. By this point, it was after ten o'clock in the evening. The two arrived at the apartment and continued to argue. During this "heated conversation," Taglieri called Monasky "the son of a devil" and told her that she could take a taxi back to the hospital if she wanted to return. Sometime during the very early morning hours of the next day, Monasky took a taxi to the hospital—having experienced contractions all night long. Taglieri contends that Monasky left while he was sleeping, and he immediately went to the hospital once he awoke and learned that Monasky was already on her way.

After protracted labor, A.M.T. was born via an emergency caesarean section

. Taglieri and Monasky's mother, whom he had brought from the airport, were present for the birth. After Monasky was released from the hospital after a week's stay, Taglieri returned to Lugo while Monasky endured a "difficult" recovery in Basiglio, cared for by her mother. Her recovery was hampered by a previous surgery, which—coupled with the caesarean section—made rising or sitting strenuous. Taglieri returned to Basiglio at the beginning of March, following the departure of Monasky's mother, and Monasky broached the subject of divorce once more. She renewed the discussion in an e-mail sent the next day, noting that although Taglieri "seemed ... not ready," she wanted to divorce him amicably and leave Italy with A.M.T. Monasky informed her family of her intentions to divorce Taglieri through numerous e-mails. Taglieri returned to Lugo alone on March 2, but the next day Monasky agreed to join him in Lugo with A.M.T. The parties strongly dispute the motivation behind the trip: Monasky stated that she agreed "in a moment of weakness," given the difficulties of caring for a newborn child alone while recovering from the caesarean section

, and brought only "a couple of suitcases and [a] stroller." Taglieri hoped the couple would use the time to "clarify any existing issues."

Taglieri described the family's time in Lugo as a reconciliation, during which they returned to "the regular course of ... life." Monasky continued preparations to take her Italian driving test by signing up with a driving school for mandatory lessons and completing a number of sessions, registered the family for an au pair and sought childcare for "June [through] August," scheduled doctor's appointments for A.M.T., and coordinated with her aunt to schedule a future visit to Italy in September. The couple celebrated A.M.T.'s one-month birthday, traveled to Bologna for a family day-trip, discussed ideas regarding their scientific work, and asked Monasky's mother-in-law to babysit A.M.T. when Monasky traveled to a professional conference in Germany in July.

Conversely, Monasky stated that the trip to Lugo was not an attempt to reconcile the marriage; rather, her intent to leave Italy was fixed. She explained the coordination with her aunt was the result of not wanting to mention an...