New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.


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Friday, October 19, 2018

Taglieri v. Monasky, 2018 WL 5023787 [6th Circuit, 2018] Italy] [Habitual Residence] [Petition granted]



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In Taglieri v. Monasky, 2018 WL 5023787 [6th Circuit, 2018] the district court granted the Taglieri’s petition for the return of A.M.T. to Italy. The Sixth Circuit, sitting en banc on reargument, affirmed. 

Taglieri, an Italian, and Monasky, an American, met in Illinois. They married in Illinois in 2011. Two years later, they moved to Italy to pursue their careers. At first, they 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. Monasky became pregnant with A.M.T. in May 2014, after one of the times Taglieri forced her to have sex, she claimed. 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 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 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. Monasky and Taglieri disputed whether they reconciled in Lugo. 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. 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 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. Monasky returned A.M.T. to Italy. On appeal, a divided panel of the court affirmed the district court. 876 F.3d 868 (2017). The Court granted Monasky’s petition for rehearing en banc. No. 16-4128 (Mar. 2, 2018).

Judge Sutton’s opinion noted that 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.  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.” The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to “shared parental intent.” As to the first approach, the question is “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Ahmed, 867 F.3d at 687. District courts ask these sorts of questions in determining a child’s acclimatization: whether the child participated in “academic activities,” “social engagements,” “sports programs and excursions,” and whether the child formed “meaningful connections with the [country’s] people and places.” But the acclimatization inquiry, as Ahmed appreciated, may prove difficult, sometimes impossible, for young children. An infant “never forms” “or is incapable of” forming the kinds of “ties” to which the acclimatization standard looks. Unwilling to leave infants with no habitual residence and thus no protection from the Hague Convention, Ahmed adopted an alternative inquiry for infants incapable of acclimating. In that setting, Ahmed tells courts to determine the “shared parental intent of the parties” and to identify the location where the parents “intended the child [] to live.”  Ahmed says that “the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case.” The Sixth Circuit cases treat the habitual residence of a child as a question of fact. See, e.g., Ahmed, 867 F.3d at 686; Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009); Tesson, 507 F.3d at 995.

The Court held that measured by these insights and these requirements, the district court’s ruling should be affirmed. No one thinks that A.M.T. was in a position to acclimate to any one country during her two months in this world. That means the case looks to the parents’ shared intent. It pointed out that in answering that question, “we must let district courts do what district courts do best—make factual findings—and steel ourselves to respect what they find. While we review transcripts for a living, they listen to witnesses for a living. While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living. Consistent with the comparative advantages of each role, clear-error review is highly deferential review. In the words of the Supreme Court, we leave fact finding to the district court unless we are “left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). In the words of the Sixth Circuit, we leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990).”

The Court found that nothing in Judge Oliver’s habitual-residence finding left a “definite and firm conviction that a mistake” was made or, more pungently, strikes one as wrong with “the force of a five-week-old, unrefrigerated” aquatic animal. He presided over a four-day bench trial and heard live testimony from several witnesses, including most essentially the two parents: Monasky and Taglieri. After listening to the witnesses and weighing their credibility, Judge Oliver issued a 30-page opinion finding that Italy is A.M. T’s country of habitual residence. Judge Oliver’s opinion was thorough, carefully reasoned, and unmarked by any undue shading of the testimony provided by the competing witnesses. Some evidence, as he pointed out, supported the finding that Monasky and Taglieri intended to raise A.M.T. in Italy. Some evidence, as the trial court acknowledged, pointed in the other direction. Faced with this two-sided record, Judge Oliver had the authority to rule in either direction. He could have found that Italy was A.M.T.’s habitual residence or he could have found that the United States was her habitual residence. After fairly considering all of the evidence, he found that Italy was A.M.T.’s habitual residence. The Court held that it must treat the habitual-residence inquiry as it always has: a question of fact subject to deferential appellate review. Because the district court applied the correct legal standard and made no clear errors in its habitual-residence finding, and quite carefully considered all of the competing evidence it affirmed. 

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