Taglieri v. Monasky, 16-4128

• Decision Date: 17 October 2018
• 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

907 F.3d 404

Domenico TAGLIERI, Plaintiff-Appellee,

v.Michelle MONASKY, Defendant-Appellant.

No. 16-4128

United States Court of Appeals, Sixth Circuit.

Argued: June 13, 2018

Decided and Filed: October 17, 2018

REARGUED EN BANC: Aidan Taft Grano, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant. John D. Sayre, NICOLA, GUDBRANSON & COOPER, LLC, Cleveland, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF: Aidan Taft Grano, 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. Michael A.F. Johnson, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., Rachel G. Skaistis, CRAVATH, SWAINE & MOORE LLP, New York, New York, for Amici Curiae.

Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.

SUTTON, J., delivered the opinion of the court in which BOGGS, BATCHELDER, COOK, McKEAGUE, KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined. BOGGS, J. (pp. 411–15), delivered a separate concurring opinion in which BATCHELDER, COOK, McKEAGUE, and BUSH, JJ., joined. MOORE, J. (pp. 415–21), delivered a separate dissenting opinion in which COLE, C.J., and CLAY, GIBBONS, GRIFFIN, WHITE, STRANCH, and DONALD, JJ., joined. GIBBONS, J. (pp. 421–22), delivered a separate dissenting opinion in which COLE, C.J., and MOORE, CLAY, GRIFFIN, WHITE, and STRANCH, JJ., joined. STRANCH, J. (pp. 422–23), delivered a separate dissenting opinion in which COLE, C.J., and MOORE, CLAY, GIBBONS, and WHITE, JJ., joined.

SUTTON, Circuit Judge.

Domenico Taglieri and Michelle Monasky were married. When the union fell apart, Monasky took A.M.T., their two-month-old daughter, from Italy to the United States. Taglieri filed a petition under the Hague Convention to return A.M.T. to Italy. The district court granted the petition after finding that Italy was A.M.T.’s country of habitual residence. Monasky appealed.

Who wins turns on who decides. The Hague Convention places the child’s habitual residence front and center in trying to achieve its goal of discouraging spouses from abducting the children of a once-united marriage. The Convention and our cases establish that the inquiry is one of fact. Judge Oliver held a four-day hearing about the point, after which he wrote a 30-page opinion that carefully and thoughtfully explained why Italy was A.M.T.’s habitual residence. No part of that decision goes awry legally, and no part of his habitual-residence finding sinks to clear error. We affirm.

I.

Taglieri, an Italian, and Monasky, an American, met in Illinois. Taglieri, who was already an M.D., was studying for his Ph.D. and worked with Monasky, who already had a Ph.D. They married in Illinois in 2011. Two years later, the couple moved to Italy to pursue their careers, with Taglieri arriving in February and Monasky arriving in July. At first, the couple lived in Milan, where they each found work—Taglieri as an anesthesiologist, Monasky as a research biologist. The marriage had problems, including physical abuse. Taglieri struck Monasky in the face in March 2014. After that, Monasky testified, he continued to slap her, making her increasingly afraid of him, and "forced himself upon [her] multiple times." R. 88-4 at 201.

Monasky became pregnant with A.M.T. in May 2014, after one of the times Taglieri forced her to have sex, she claims. In June 2014, Taglieri took a job at a hospital in Lugo, about three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky had a difficult pregnancy, which, when combined with the long-distance separation, strained the relationship further. To make matters worse, she didn’t speak Italian or have a valid driver’s license, increasing her dependence on Taglieri for help with basic tasks. Monasky began investigating health care and child care options in the United States and looking for American divorce lawyers. But the couple also looked into child care options in Italy and prepared for A.M.T.’s arrival at the same time.

In February 2015, Monasky emailed Taglieri about seeking a divorce and investigated a move back to the United States. The next day, Monasky and Taglieri went to the hospital in Milan for a pregnancy checkup. The doctors recommended that they induce labor. Monasky refused because she preferred a natural birth, upsetting Taglieri and prompting more verbal sparring. On the ride home from the hospital, Monasky asked Taglieri to turn the car around because she felt contractions. Taglieri refused. Back at their apartment, the arguments continued, with Taglieri calling her "the son of a devil." R. 88-4 at 113.

Later that night, Monasky took a taxi to the hospital. Once Taglieri realized she had left, he went to the hospital and was there, along with Monasky’s mother, during the labor and at A.M.T.’s birth by emergency cesarean section. After Monasky and A.M.T. left the hospital, Taglieri returned to Lugo, and Monasky stayed in Milan with A.M.T. and her mother.

In March 2015, after Monasky’s mother returned to the United States, Monasky told Taglieri that she wanted to divorce him and move to America. A few days later, however, Monasky left Milan to stay with Taglieri in Lugo. While Taglieri said he thought this would help them "clarify any existing issues," R. 88-1 at 39, Monasky said she went to Lugo because she couldn’t recover from her cesarean section and take care of A.M.T. alone. Monasky and Taglieri dispute whether they reconciled in Lugo. Taglieri says they did. Monasky says they didn’t. During this time, the two jointly initiated applications for Italian and American passports for A.M.T.

In late March, Taglieri and Monasky had another argument. As the dispute escalated, Monasky slammed her hand on the table. Taglieri raised his hand as if he were going to hit her. But he didn’t. He instead went into the kitchen. Monasky thought she heard Taglieri pick up a knife, but he came back into the room carrying ice cream. Soon after, Taglieri went to work and Monasky took A.M.T. to the police, seeking shelter in a safe house. She told the police that Taglieri was abusive. After Taglieri returned home and found his wife and daughter missing, he went to the police to revoke his permission for A.M.T.’s American passport. Two weeks later, Monasky left Italy for the United States, taking eight-week-old A.M.T. with her.

Taglieri filed an action in Italian court to terminate Monasky’s parental rights. The court ruled in Taglieri’s favor ex parte. Then Taglieri filed a petition in the Northern District of Ohio seeking A.M.T.’s return under the Hague Convention. The district court granted Taglieri’s petition. Monasky appealed. After this court and the United States Supreme Court denied her motion for a stay pending appeal, Monasky returned A.M.T. to Italy.

On appeal, a divided panel of this court affirmed the district court. 876 F.3d 868 (2017). We granted Monasky’s petition for rehearing en banc. No. 16-4128 (Mar. 2, 2018).

II.

Ninety-nine countries, including the United States and Italy, have signed the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. See Status Table, HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last updated Sept. 12, 2018). The treaty addresses a pressing and never-ceasing policy problem—the abductions of children by one half of an unhappy couple. The Convention’s mission is basic: to return children "to the State of their habitual residence," to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child. Hague Convention pmbl.

Federal law, namely the International Child Abduction Remedies Act, implements the Hague Convention and hews to the treaty’s language. 22 U.S.C. § 9001 et seq . A parent may petition a federal or state court to return abducted children to their country of habitual residence. Id. § 9003(b). The federal or state court determines whether to return the child. Id. § 9001(b)(4). Courts in the country of habitual residence then determine the "merits of any underlying child custody claims." Id. The parent seeking return of a child must prove by a preponderance of evidence that the child was "wrongfully removed ... within the meaning of the Convention." Id. § 9003(e)(1)(A). The Hague Convention defines wrongful removal as taking a child in violation of custodial rights "under the law of the State in which the child was habitually resident immediately before the removal." Hague Convention art. 3.

The key inquiry in many Hague Convention cases, and the dispositive inquiry here, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives. See Webster’s New International Dictionary 1122, 2119 (2d ed. 1942) (defining "residence" as a place where a person "actually lives" and "habitual" as "customary").

Building on our cases in the area, Ahmed v. Ahmed offers two ways to identify a child’s habitual residence. 867 F.3d 682 (6th Cir. 2017). The primary approach looks to the place in which the child has become "acclimatized." Id. at 687. The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to "shared parental intent." Id. at 689 ; see also Robert v. Tesson , 507 F.3d 981, 992 n.4 (6th Cir. 2007). Every circuit to consider the question looks to both standards. Ahmed , 867 F.3d at 689 ; see Mauvais v. Herisse , 772 F.3d 6, 11 (1st Cir. 2014) ; Guzzo v. Cristofano , 719 F.3d 100, 110 (2d Cir. 2013) ; Karkkainen v. Kovalchuk , 445 F.3d 280, 296 (3d Cir. 2006) ; Maxwell v. Maxwell , 588 F.3d 245, 253 (4th...