Lead Opinion
BOGGS, J., delivered the opinion of the court in which McKEAGUE, J,, joined. MOORE, J. (pp. 879-84), delivered a separate dissenting opinion.
Our decision in this ease 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 Tagli-eri, 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 email Monasky sent to. Taglieri in April 2013, she wrote: “don’t think that [the fact that
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 University 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, Mo-nasky 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
' 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 Mo-nasky 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. Mona-sky 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 Mo-nasky “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. Tagli-eri 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, Tag-lieri 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
Taglieri described the family’s tíme 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 Mo-nasky 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 impending divorce to a family member who was only an infrequent contact, and she hoped to be able to explain things face-to-face in the United States. As for the driver’s license and medical appointments, Monasky testified that they were necessary to take care of A.M.T. and “until [she and A.M.T.J could return to the United States, [she and Taglieri] were just doing what any parent would do and just scheduling] appointments.”
Monasky also engaged in a number of other activities that indicated that she would be in Italy in at least the near future: she wrote to her OB/GYN in Milan and stated that she hoped to bring A.M.T. to meet her and she continued her attempts to get her degrees recognized. She was, however, in contact with Italian divorce attorneys in an attempt to learn more about Italian divorce law and child custody. Additionally, in early March 2015 Monasky withdrew Taglieri’s access to a joint investment account, allegedly out of concern that he would remove all of its funds and then leave her with nothing. Taglieri was upset that he could not view the account, and Monasky restored his access within a week. While the two were in Lugo, they arranged to complete the process of registering A.M.T.’s birth at the United States ponsulate and obtaining her Italian and American passports (a process that had begun in late February). According to Taglieri, these passports were necessary for a trip that was planned for the family to, visit Monasky’s family in the United States in May.
On March 31, 2015, Monasky and Tagli-eri had another argument, which began over Taglieri refusing to allow Monasky to change A.M.T.’s clothes after she had urinated in them because of the cost of laundry. In the course of the argument,
Taglieri did acquire counsel and eventually was put into contact with Monasky over the phone. Through his counsel, he sought to withdraw his consent for the American passport application and to block AM.T.’s passports to prevent her from leaving the country. Despite these efforts, Monasky obtained her daughter’s American passport and left Italy with eight-week-old A.M.T. on April 15, 2015, for the United States. Taglieri was informed that Monasky and A.M.T. had gone 'missing from the-safé house and he sought proceedings in an Italian court to determine his parental rights. The court terminated Monasky’s parental rights, and Taglieri filed a petition in the United States District Court for the Northern District of Ohio on May 14, 2015, seeking the return of his daughter to Italy pursuant to the Convention. The parties then presented their arguments before Chief Judge Solomon Oliver, and'Monasky sought summary judgment and the denial of the request for a return order.
After denying Monasky’s motion for summary judgment, the district court held a four-day trial in March 2016. In an order issued six months later, the district court granted Taglieri’s petition for the return of A.M.T. to Italy, to be accomplished within forty-five days. The district court held that in cases of very young children, “the shared intent of the parties is relevant,” and that under this standard, A.M.T.’s habitual residence (and therefore the location that she should be returned to) was Italy. Chief Judge Oliver found that Monasky had no definitive plans to return to the United States until the final altercation at the end of March. Finally, the court also held that the other requirements of the Convention had been met: Taglieri had properly exercised" his custody rights, A.M.T.’s removal'was wrongful, and Mona-sky had not shown by clear and convincing evidence that Taglieri posed a grave risk of harm to A.M.T. Monasky moved to stay the order pending appeal to the Sixth Circuit and her motion was partially granted by the district court to give this court the opportunity to rule on the motion. We denied the motion to stay, finding that “a balance of'... [relevant] factors weighed against staying the return order.” An application for an emergency stay pending appeal submitted to Justice Kagan' also was denied. As a result, A.M.T. was returned to Italy.
II
The object of the Hague Convention, as professed in its preamble, is “to protect children internationally- from the harmful effects of their wrongful removal
Under the federal implementing statute, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9008, 9010-9011 (Supp. II 2014), 42 U.S.C. § 663 (2012), a petitioner seeking the return of a child must establish by a preponderance of the evidence “that the child has been wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. § 9003(e)(1)(A). The Convention (in relevant part) defines as wrongful the removal or retention of a child “in breach of rights of custody ... under the law of the [Contracting] State in which the child was habitually resident immediately before the removal or retention.” Convention art. 3. The initial critical question that we must address is whether Taglieri has established that A.M.T. was removed in breach of the law of the State in which she was habitually resident. If so, we must determine whether an exception applies. “We review, the district court’s findings of fact for clear error and review its conclusions about American, foreign, and international law de novo.” Friedrich II,
A, Habitual Residence
The answer to the first question depends upon the meaning of the term “habitual residence.” This court' has had the opportunity to explore its meaning before, and a brief summary of our past analysis is in order here. When we were first confronted’ with the term in Friedrich v. Friedrich,
In Robert v. Tesson,
This brief survey reveals that we use three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, our analysis is more complicated. In such cases, we begin by applying the acclimatization standard. See id. at 690. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” we then consider the shared parental intent of the child’s parents. Ibid. (“The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent.”).
With this framework in mind, we observe that a straightforward application of precedent would seem to compel the conclusion that the habitual residence of A.M.T. was Italy. Here, A.M.T. was born in Italy and resided there exclusively until Monasky took A.M.T. to the United States in April 2015. Similarly, Friedrich I based its conclusion that the child in question had a habitual residence in Germany on the fact that the child had “resided exclusively in Germany.”
Monasky and the dissent contend that our recent opinion in Ahmed requires a different result. It is true that Ahmed spoke broadly about young children, but it dealt specifically with the application of the acclimatization standard, which both Robert and Simcox recognized as difficult to apply in cases of small children. Robert,
Consequently, the dispositive factor here is that this is not a case where “a child has alternated residences between two or more nations,” the situation that Robert’s acclimatization test was crafted to address and
We recognize that there can be some difficulties with our approach. What of the case of Delvoye v. Lee,
B.Exercise of Custody Rights
The district court also, concluded that “Taglieri has proven, by a preponderance of the evidence, that he was exercising his custody rights to A.M.T. under Italian law at the time of her removal.” The burden of proving the exercise of custody rights falls on the petitioner, who must establish it by a preponderance of the evidence. Friedrich II,
Under Italian law, parental responsibility and authority over a child are held by both parents, exercised by mutual accord. 1 C.c. tit. IX, art. 316 (It.). With marriage, a husband and wife acquire the same rights and assume the same duties. 1 C.c. tit. VI, art. 143 (It.). But even upon separation of married parties, the parental responsibilities of both parents continue. 1 C.c. tit. IX, art. 317 (It.). “Under Italian law, the term ‘parental responsibility,’ though riot explicitly defined, ‘implies the totality of rights and duties exercised exclusively in the interest of the child by the parents.’ ” Taglieri v. Monasky, No. 1:15-cv-00947-SO, slip op. at 23 (quoting Pl.’s Ex. 60, Prof. Salvatore Patti et al., Parental Responsibilities: Italy ¶ 1). Moreover, an Italian juvenile court has determined that Taglieri has parental rights. Thus, it is clear that Taglieri had custody rights to A.M.T. at the time of the removal.
C. Grave Risk of Harm
Our holding that the removal of A.M.T. was wrongful does not completely resolve the case. Monasky argues that even if we hold that the removal was wrongful, an exception applies. The Convention provides that “the judicial ... authority of the requested State is not bound to order the return of the child if [the opposing party] establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention art. Í3. The burden of proof established by ICARA is Monasky’s, who must demonstrate the grave risk of harm by “clear and convincing evidence.” 22 U.S.C. 9003(e)(2)(A). We review the district court’s decision with regard to grave risk de novo. Simcox,
Simcox illustrates the required showing where a grave risk is alleged. We stressed that the exception “is to be interpreted narrowly, lest it swallow the rule.” Id. at 604. But we also noted that “there is a danger of making the threshold so insurmountable that district courts will be unable to exercise any discretion in all but the most egregious cases of abuse.” Id. at 608. Findings of grave risk are necessarily fact intensive, and thus the'findings of the district court are particularly .instructive. In this case, the district court found Mona-sky’s testimony with respect to the domesr tic and- sexual abuse against her to be credible. But the court also observed that “the frequency with which Taglieri subjected Monasky to physical violence and severity of the physical violence is unclear,” and found that there was “no evidence to suggest that Taglieri was ever physically violent towards A.M.T.” The first half of the exception makes plain that the risk of physical or psychological harm is directed to the child. In Simcox, the petitioner (the children’s father) had repeatedly struck and belted the children, under the ostensible authority of parental discipline. Id. at 599. Our court held that the burden of establishing by clear and convincing evidence a grave risk of harm had been met in that case and that undertakings directed to maintaining the safety of the children likely were appropriate, subject to the discretion of the district court. Id. at 609-10. But we found Simcox to be “a close question,” and weighed the “serious nature of the abuse, the extreme frequency with which it occurred, and the reasonable likelihood that it will occur again absent sufficient protection.” Id. at 609. As noted above, Chief Judge Oliver found that the frequency and severity of violence to Monasky were unclear, and that there was no evidence that violence was ever directed at A.M.T.
This is not to say that a child who is not herself subject to physical abuse is never in grave risk of psychological harm or of being placed in an “intolerable situation.”
Ill
The foundation of our- test for determining habitual residence has always been the experiences of the child. With regard to determining A-M.T.’s experiences here, “[t]his is a simple case.” Friedrich I,
Notes
. Again, we reiterate that our case does not concern an infant who has resided in multiple countries, which is the situation that Ahmed addressed. We limit our scope to those cases where a child has been residing exclusively in one State prior to a contested removal.
. Other cases with potential problems might include unexpected births in a foreign country, children born to itinerant parents, or physical coercion. We express no opinion on what the appropriate standard should be for such cases.
Dissenting Opinion
dissenting.
The Hague Convention’s admirable goal is to “protect children internationally from the, harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Convention on the Civil Aspects of International Child Abduction' (1980). The key question in this Hague Convention case is: Where is A.M.T.’s habitual residence, if one exists at all? The majority recharacterizes our prior decisions on this issue and,- in doing so, alters the standards we have used to determine a child’s habitual residence under the Hague Convention. Because I believe that the majority’s analysis in this case distorts our precedent; I respectfully dissent. - -
A.
,' “The question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo by this Court.” Robert v. Tesson,
B.
We first addressed the question of habitual residence in Friedrich I,
The principles elucidated by Friedrich I worked well in that case, where the child had lived exclusively in Germany for two years after he was born, but we recognized that the case provided minimal guidance in other situations. Robert,
.In our recent decision in Ahmed v. Ahmed,
Mr. and Mrs. Ahmed married in 2009 while Mr. Ahmed, a U.K. citizen, lived in London and Mrs. Ahmed, a U.S. citizen, lived in Michigan. Ahmed,
In our subsequent decision affirming the district court’s denial of Mr. Ahmed’s petition, we extensively discussed our prior cases analyzing the Hague Convention. We began by stating that “[w]e have generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment.” Id. at 688. We noted, however, that there was a “gap” in our precedent “concerning especially young children.” Id. at 689. Consequently, we discussed the reasons for adopting a different standard for determining habitual residence for infants than for older children. First, “[t]he most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children.” Id. Furthermore, we noted the persuasive authority of other circuits: “Every circuit to have determined whether a country constituted a habitual residence considers both the acclimatization and shared parental intent standards. ... And all but the Fourth and Eighth Circuits prioritize shared parental intent in cases concerning especially young children.” Id. at '689-90 (collecting cases in which the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh circuits utilize the shared-parental-intent standard). Based on these reasons, we concluded that:
[I]t is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and 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. We make no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with our precedent.
Id. at 690 (citations omitted).
Applying this newly clarified analysis to the Ahmeds’ situation, we first began with the acclimatization standard as articulated in Simcox: “[A] court should consider 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.’ ” Simcox,
C.
The majority today holds that A.M.T.’s habitual residence was Italy, the country from which she was taken. Maj. Op. at 877. It reaches that erroneous result by adopting a formalistic, rigid, bright-line rule that a child’s habitual residence is her country of birth if she has exclusively resided in that country. Maj. Op. at 876. This conclusion is: in contravention of Friedrich I’a admonition that residence' should not be determined on -the basis of bright-line rules and instead “[t]he facts and circumstances of each case should ... be assessed without resort , to presumptions or presuppositions.” Friedrich I,
D.
Our analysis in Ahmed compels the result in this case. First; it is clear that the acclimatization standard is not “workable” in this situation. Here, A.M.T. resided in Italy for only eight weeks, from her birth in February 2015 until Monasky returned with her to' the United States in April 2015. R. 70 (Dist. Ct. Op. at' 1, 8) (Page ID #1865,1872). We concluded that the eight-month-old twins in Ahmed were unable to have a “degree of settled purpose” anywhere due to their age. Ahmed,
The district court did consider the lack of shared intent to be relevant to its determination of A.M.T.’s habitual residence. R. 70 (Dist. Ct. Op. at 21) (Page ID #1885). It did so, however, without the guidance of our decision in Ahmed, and consequently its analysis does not comport with the correct legal standard. The district court incorrectly focused on Moha-skjfs lack of definitive plans to leave Italy immediately—she was waiting until A.M.T.’s passport was issued—and whether or not Monasky and Taglieri had established a marital home in Italy.
Here, the district court’s findings of fact indicate that Taglieri has failed to satisfy his burden of proof under the shared-parental-intent standard as elucidated in Ahmed. The district court found that the parties’ marriage “during the time surrounding the birth of their daughter was fraught with difficulty.” R, 70 (Dist. Ct. Op. at 17-18) (Page. ID #1881-82). In the months before and after A.M.T.’s birth, Taglieri subjected Monasky to physical and sexual abuse. Id. at 27-28 (Page ID #1891-92). During her pregnancy, Mona-sky
Because the district court did not have the benefit of our decision in Ahmed when applying the shared-parental-intent standard, but rather had to hypothesize about the content of this standard, I would reverse and remand this case so that the district court can conduct its factfinding utilizing the correct legal analysis as articulated in Ahmed. See Brumley v. Albert E. Brumley & Sons, Inc.,
E.
This is a deeply troubling case, as Hague Convention cases often are. And I must respectfully' disagree with my colleagues’ failure to follow binding Circuit precedent. This is “a simple case,” Maj. Op. at 879, because our decision in Ahmed compels the outcome in this case. Our acclimatization standard is sufficient to determine the habitual residence of most children, and when it is not, we must then use the settled-parental-intent standard. Where the child is too young to have acclimatized to her community and surroundings, and where the parents do not have a settled mutual intent, I would conclude that the child cannot have a habitual residence. I would therefore reverse the judgment of the district court and remand so that the district court, in accordance with the correct legal standard as explained in this opinion and Ahmed, can determine whether Taglieri demonstrated by a preponderance of the evidence that a shared parental intent for AM.T. to reside habitually in Italy existed.
. Ahmed did not discuss whether the shared-parental-intent standard should apply to "developmentally disabled children who] may lack cognizance of their surroundings sufficient to become acclimatized to a particular' country or to develop a sense of settled purpose.” Robert,
, The district court stated that; "Assuming that the Sixth Circuit would hold that the shared intent of the parties is relevant in determining the habitual residence of an infant child, the court finds that such inquiry in this case would begin with determining whether there is a marital home where the child has resided with his parents,” R. 70 (Dist. Ct. Op. at 21) (Page ID #1885). The district court's conclusion, however, that the parties had established a marital home in Italy appears to have been not only the first inquiry in its analysis, but also the overriding factor in its decision. Id. at 20-21 (Page ID #1885-86). But while the existence of a marital home may be evidence of a shared-parental intent for the child to be raised in that locale, it is not dispositive. See Redmond v. Redmond,