“World mapping”by sufianalatrash is licensed under CC BY-NC-SA 2.0
Chloe Knue, Associate Member, University of Cincinnati Law Review
I. Introduction
A man and a woman make a baby. This natural occurrence can trigger a range of circumstances, including a family, co-parenting, or even—abduction. Abduction is the major concern of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “the Convention”).[1] The Convention is an international treaty, signed by 99 countries that facilitates the “return [of] children ‘to the State of their habitual residence,’. . .”[2] A dispute over habitual residence often occurs when one “parent[ ] tak[es] matters into [his or her] own hands[,]” and removes the child to another country.[3] The question becomes whether the child was a habitual resident of the country from which they were taken.[4] If the answer is no, the removal is not wrongful and the child will not be returned by a signatory nation to which the child was removed.[5] Under the Convention, the courts of the country to which the parent has taken the child decide whether the child must be returned to the parent petitioner.[6] If the child is to be returned, the underlying custody dispute is resolved in the original country.[7]
The following hypothetical is instructive: Mom and Dad have Baby. The relationship between Mom and Dad deteriorates. Mom leaves Original Country, taking Baby to New Country. The question is: where is Baby’s habitual residence? It is only when the answer to this question is Original Country that: (1) Baby is returned to Original Country and (2) Original Country may adjudicate the underlying custody dispute.
Section II will summarize Sixth Circuit case law leading up to the court’s seminal decision in Ahmed v. Ahmed.[8] Section III will discuss Taglieri v. Monasky.[9] Section IV will argue that Taglieri should have been remanded to the district court to determine whether there was, in fact, a meeting of the minds between the parties.
II. Background
In Friedrich v. Friedrich, the Sixth Circuit resolved a dispute over habitual residence where the child had lived in only one country.[10] Mrs. Friedrich was an American citizen serving in the military, and Mr. Friedrich was a German citizen.[11] The couple married and had a child in Germany. When the child was almost two years old, Mrs. Friedrich removed the child to Ohio.[12] Mrs. Friedrich argued that the child was a habitual resident of the United States based on her intention to return to the states after serving in the military.[13] The court disagreed. It explained, “[t]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”[14] Based on the child’s past experience in Germany, the court determined that Germany was, in fact, the child’s habitual residence.[15] But things got a little more complicated in Robert v. Tesson.[16]
Unlike Friedrich, Robert was a two-country case.[17] In Robert, the couples’ twin boys spent time in both the United States and France.[18] Not only had they attended school in countries places, but they also were bilingual.[19] Noting that Friedrich was the Sixth Circuits’ “sole precedent on this issue[,],” the court started there.[20] It distinguished Friedrich because the facts “did not provide this Court with an opportunity to determine what standard should apply when a child has alternated residences between two or more countries.”[21] For that reason, the court adopted a new acclimatization standard.[22] The acclimatization inquiry asks: how well does the child know the place the parent contends is the child’s habitual residence? A court will weigh a variety of factors to determine acclimatization, including, “‘academic activities’. . . ‘social engagements,’ ‘participation in sports programs’. . . and ‘meaningful connections with the people and places’. . .”[23] Because the twins’ time spent in the United States, when viewed in light of these factors, suggested they had acclimated to the United States rather than France, the court found the United States to be their habitual residence.[24]
The Ahmed court adopted Robert’s acclimatization test but added a second prong.[25]In Ahmed, Mrs. Ahmed gave birth to twins in the United States.[26] Shortly after, Mrs. Ahmed and her two children traveled to the United Kingdom to visit Mr. Ahmed.[27] “The couple dispute[d] whether Mrs. Ahmed considered the relocation to the United Kingdom permanent.”[28] As in Robert, the children in Ahmed had spent time in two countries but the children were so young that the court struggled to evaluate acclimatization.[29] The court stated, “[a]s infants, they were unable to [acclimate] . . . anywhere when Mrs. Ahmed traveled with them . . .”[30]As a result, Ahmed adopted a shared parental intent prong.[31] It described this inquiry as “the parents’ last ‘settled mutual intent’ for where their children would live.”[32] Because the court could not identify a mutual intent between the parents, the children were permitted to stay in the United States with their mother.[33]
When Taglieri v. Monasky was decided, pre-Ahmed, in the Northern District of Ohio, the proper analytical framework was still unclear.[34] Unfortunately, the Taglieri court provided little clarity when it issued a majority opinion, a concurring opinion, and three dissenting opinions. The judges disputed three main questions of law: (1) whether the Friedrich test still applied; (2) whether a remand was necessary in light of Ahmed; and (3) whether there had to be a meeting of the minds under the second Ahmed prong. The Supreme Court has since granted certiorari and will hear the case when it reconvenes this October.
III. Monasky v. Taglieri
Monasky (the mother) was an American citizen and Taglieri (the father) was an Italian citizen. They met in graduate school in Illinois.[35] Shortly after, the couple moved to Italy. At trial, Monasky accused Taglieri of physical abuse and even alleged that Baby A.M.T. had been conceived when Taglieri raped Monasky. The couple also lived apart for almost the entire pregnancy after Taglieri began a new job three hours away.[36] All of Baby A.M.T.’s experiences had been in Italy before Monasky removed the child to the United States.[37] At eight weeks old, it was clear to the court that Baby A.M.T. was too young to acclimate.[38] The court then focused entirely on the shared parental intent prong.[39]
Monasky argued that Baby A.M.T. had no habitual residence at the time of his or her removal because: (1) “Monasky . . . investigat[ed] health care and child care options in the United States[;]” (2) “[Monasky] look[ed] for American divorce lawyers[;]” (3) “[Monasky and Taglieri] jointly initiated applications for Italian and American passports for [Baby] A.M.T.[;]” and (4) “[s]he contacted . . . international moving companies.”[40] Whereas, Taglieri argued the child was a habitual resident of Italy because:
[1] Monasky pursued recognition of her academic credentials by Italian officials. [2] Together, Monasky and Taglieri purchased several items necessary for raising A.M.T. in Italy, including a rocking chair, stroller, car seat, and bassinet. [3] Monasky applied for an Italian driver’s license. And [4] Monasky set up routine checkups for A.M.T. in Italy, registered their family to host an au pair there, and invited an American family member to visit them there in six months.[41]
On appeal, Monasky argued that the evidence did not support a meeting of the minds and Baby A.M.T. did not have a habitual residence.[42] The Sixth Circuit said that a meeting of the minds was “a sufficient, [but] not a necessary, basis for locating an infant’s habitual residence.”[43] As a result, it affirmed the decision of the district court and found Taglieri met his burden, by a preponderance of the evidence, of showing that Italy was Baby A.M.T.’s habitual residence.[44] Baby A.M.T. has since been returned to Italy.[45]
IV. Discussion
The proper analytical framework under the Convention merges all three tests—Friedrich, Robert, and Ahmed. The three-prong test would first ask whether the facts present a one-country case. If so, the Friedrich test should be applied. If the answer is no, the court should apply Robert’s acclimatization standard which is also the first prong in Ahmed. Only when the child is too young to acclimate should the court look to the second Ahmed prong—shared parental intent. The shared parental intent prong should be insulated by other tests as much as possible because it is properly interpreted as a high standard.
Friedrich was improperly ignored by the court in Taglieri. In his concurrence, Judge Boggs argued that, like Friedrich, Taglieri is a “‘simple case.’”[46] Under Friedrich, if the child has lived in only one country for a reasonable period of time, the strong presumption should be that the original country is the child’s habitual residence.[47] In Friedrich, a reasonable time was a year and seven months.[48]Judge Boggs feared that if the Ahmed test would have been applied in Friedrich, the child would not have been returned to Germany.[49] He reasoned, “[t]he nineteen-month-old child . . . may have been too young to acclimate to Germany, and there was considerable evidence of marital discord and a lack of shared parental intent, . . .”[50] For that reason, Friedrich should serve as the critical first step in the framework.
Although Friedrich should have been discussed in Taglieri to preserve its application in other cases, the Friedrich test would not have resolved the dispute between Monasky and Taglieri. In Friedrich, the child had almost two years of past experience in Germany. Additionally, the parents had lived together at some point as a family unit.[51] It was pretty clear that Germany was “home.”[52] In contrast, the relationship between Monasky and Taglieri, during the pregnancy and immediately after Baby A.M.T.’s birth, was contentious and Monasky left with the child when he or she was only eight weeks old. Because Baby A.M.T. spent significantly less time in Italy and the relationship between Taglieri and Monasky was much less stable than the couples’relationship in Friedrich, Friedrich cannot apply, and Ahmed is triggered.
The shared parental intent prong should be the test of last resort for three reasons. First, the focus shifts from the child to the parents.[53] Second, it is difficult to find a meeting of the minds, as the Ahmed court required, when a relationship has deteriorated to the point that one parent leaves.[54] Third, “[t]he strict two-part ‘Ahmed test’ all too often will compel the conclusion that a very young child is without a habitual residence. It therefore conflicts with the very purposes of the Hague Convention by leaving many young children unprotected.”[55] Nonetheless, this consideration cannot be removed from the analysis entirely. When a child has spent time in two countries or little time in any one country and is too young to acclimate, courts have no choice but to look to the parents.
The Sixth Circuit correctly determined that Baby A.M.T. was too young to acclimate. The court then relied on the parents for clarity and misapplied the second Ahmed prong when it failed to require a meeting of the minds. In the interest of efficiency and fairness, a meeting of the minds should be required. Otherwise, any Google search for a moving company or an off-handed comment to a friend about wanting a divorce becomes highly relevant. Judge Moore said it best: “[s]elf-serving testimony by either party about their internal thought process is insufficient on its own to establish either a shared parental intent or lack thereof.”[56] Internal evidence is like the court traveling through a turbulent, one-sided time machine and it does not do what the “settled”or “mutual” intent language requires.[57] Because the Sixth Circuit looked to whomever had the most “[s]elf-serving testimony” rather than whether there was a meeting of the minds, the dissenting opinions were correct in stating that a remand is necessary.
In light of Ahmed, the Sixth Circuit should have remanded the case to the district court to determine whether there was a meeting of the minds. On remand, the lower court should have been instructed to consider any mutual decisions made by Monasky and Taglieri after Baby A.M.T.’s birth. Some relevant factors are whether the pair: (1) bought items for the child together; (2) lived together after the child’s birth; or (3) made future plans for the child, such as, appointments and visits with other family members.[58] The facts of this case make the outcome a close call. Ultimately, there is enough evidence to show a meeting of the minds. Even though the Sixth Circuit reached the correct result, it should have required the district court to apply Ahmed. Not only did the couple buy items necessary for raising a child together, like a car seat and a stroller, but Monasky also scheduled a family member and an au pair to stay with them in the future. Therefore, Baby A.M.T. was properly returned to Italy.
V. Conclusion
As the majority emphasized, all international abduction disputes are difficult.[59] There are no winners when one parent leaves the country with a child, and a family is broken apart. Unfortunately, for Taglieri and Monasky, the facts of their case present an even greater degree of difficulty than most. Not only had Baby A.M.T. spent a short time in Italy, but he or she was incredibly young. Therefore, the dispute could not be resolved under Friedrich or the first Ahmed/Robert prong. Although courts “should [be careful] not to invent a habitual residence[,]” there are enough facts here to show a meeting of the minds.[60]It is also important to restate the implications of this inquiry. Monasky should take some comfort in the fact that this framework only determines whether Baby A.M.T. should be returned to Italy. She may still petition an Italian court for an order requiring Baby A.M.T. to spend time in both the United States and Italy as part of a custody agreement.[61] In the meantime, we must wait for guidance from the Supreme Court.
[1]Taglieri v. Monasky, 907 F.3d 404, 405 (6th Cir. 2018).
[2]Id. at 407 (quoting the Hague Convention on the Civil Aspects of International Child Abduction, pmbl,, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89.).
[3]Id.
[4]Id.
[5]Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017) (citing March v. Levine, 249 F.3d 462, 465-66 (6th Cir. 2011)).
[6]Id. (citing Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (citing 22 U.S.C. §9003(b)(4)).
[7]Id. (citing Friedrich, 983 F.2d at 1067).
[8]Ahmed, 867 F.3d at 682.
[9]Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018).
[10]Friedrich, 983 F.2d at 1401.
[11]Id. at 1398.
[12]Id. at 1399.
[13]Id. at 1401.
[14]Id.
[15]Id. at 1402.
[16]Robert v. Tesson, 507 F.3d 981, 982 (6th Cir. 2007).
[17]Taglieri v. Monasky, 907 F.3d 404, 413 (6th Cir. 2018) (Boggs, J., concurring) (“Robert adopted the acclimatization test to use when, and only when, the child has lived in multiple countries, leaving Friedrich Iintact as our precedent for one-country cases.”).
[18]Robert, 507 F.3d at 984-87.
[19]Id. at 985-87.
[20]Id. at 988.
[21]Id. at 992.
[22]Id. (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995)).
[23]Id. at 996 (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 293-94 (3rd Cir. 2006) (quoting Feder at 224).
[24]Id. at 997-98.
[25]Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (quoting Ahmed, 867 F.3d at 687, 689) (citing Robert, 507 F.3d at 992).
[26]Ahmed v. Ahmed, 867 F.3d 682, 685 (6th Cir. 2017).
[27]Id.
[28]Id.
[29]Id. at 690 (quoting Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007)).
[30]Id.
[31]Id.
[32]Id. at (quoting Gitter v. Gitter, 396 F.3d 124, 133, 135 (2nd Cir. 2005)).
[33]Id. at 690-91.
[34]Taglieri v. Monasky, 907 F.3d 404, 416 (6th Cir. 2018) (Moore, J., dissenting).
[35]Id. at 406.
[36]Id.
[37]Id. at 407.
[38]Id. at 407-8.
[39]Id. at 408.
[40]Id. at 406, 409 (citing Taglieri v. Monasky, No. 1:15 CV 947, 2016 WL 10951269 at *2-3, *8-9 (N.D. Ohio Sept. 14, 2016).
[41]Id. at 409 (citing Taglieri, No. 1:15 CV 947, 2016 WL 10951269 at *7-8).
[42]Id. at 410.
[43]Id.
[44]Id. at 411.
[45]Id. at 407.
[46]Id. at 413 (Boggs, J.,concurring) (quoting Friedrich, 983 F.2d at 1402).
[47]Id. at 411.
[48]Friedrich, 983 F.2d at 1398-99.
[49]Taglieri, 907 F.3d at 413 (Boggs, J., concurring).
[50]Id.
[51]Id. at 411.
[52]Robert v. Tesson, 507 F.3d 981, 991 (6th Cir. 2007); cf. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); see also Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004).
[53]Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017) (quoting Holder v. Holder, 392 F.3d 1009, 1016-17 (9th Cir. 2004) (“recognizing “‘parental intent acts as a surrogate’ in cases involving very young children for whom the concept of acclimatization has little meaning””).
[54]Taglieri, 907 F.3d at 412 (Boggs, J., concurring) (“After all, in most circumstances where the inter-family tension is so great that one parent has abducted a young child, it is very likely that the parents will have quarreled about many things, most especially about their hopes and plans for where the child will be raised.”)
[55]Id. at 415. (Boggs, J., concurring).
[56]Taglieri, 907 F.3d at 417 (Moore, J., dissenting).
[57]Ahmed, 867 F.3d at 687-88 (quoting Gitter, 396 F.3d 124, 133, 135 (2nd Cir. 2005)).
[58]Taglieri, 907 F.3d at 418 (Moore, J., dissenting) (citing Mauvais v. Herisse, 772 F.3d 6, 13 (1st Cir. 2014)) (citing Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009)).
[59]Id. at 411.
[60]Id. at 418 (Moore, J., dissenting).
[61]Id. at 407 (“Taglieri filed an action in Italian court to terminate Monasky’s parental rights. The court ruled in Taglieri’s favor ex parte.”).
