Argued: September 14, 2016
from the United States District Court for the Western
District of Kentucky at Paducah. No. 5:15-cv-00146-Thomas B.
Russell, District Judge.
King-Davis, KENTUCKY LEGAL AID, Madisonville, Kentucky, for
Rebecca K. McKelvey, STITES & HARBISON PLLC, Nashville,
Tennessee, for Appellee.
King-Davis, KENTUCKY LEGAL AID, Madisonville, Kentucky, for
Rebecca K. McKelvey, Brenton H. Lankford, STITES &
HARBISON PLLC, Nashville, Tennessee, for Appellee.
Before: ROGERS, SUTTON, and COOK, Circuit Judges.
ROGERS, Circuit Judge.
Hague Abduction Convention, which is implemented by statute
in the United States, requires the return of abducted
children to the state (i.e., nation) of habitual residence,
so that the courts of that state may resolve custody issues.
This case involves an exception that applies when there is
clear and convincing evidence that there is a "grave
risk" that the child's return would "place the
child in an intolerable situation." The mother is
American and the father is Spanish, but the state of habitual
residence is Turkey, where the father is assigned as a
Spanish diplomat. The mother has twice removed the child to
the United States, and twice been ordered by the district
court below to return the child to Turkey. The mother now
appeals the second return order, arguing that there is grave
risk of an "intolerable situation" because the
father's diplomatic status undermines the ability of the
Turkish courts to properly adjudicate custody. While the
"intolerable situation" exception does extend to
situations where custody cannot be practically or legally
adjudicated in the state of habitual residence, that is not
the case here because-as found by the district court-the
waiver by the Spanish government of the father's
diplomatic immunity sufficiently permits the Turkish courts
to adjudicate custody. The district court accordingly
properly ordered the return of the child.
Amanda Hayes is a U.S. citizen who grew up in Kentucky.
Petitioner Mario Pliego is a Spanish diplomat, whose service
requires him to move from country to country every few years.
Hayes and Pliego married in 2009 and had their only child in
2011. In 2012, the family moved to Turkey, where Pliego
served in the Spanish embassy in Ankara.
point after the birth of their child, Hayes's and
Pliego's marriage began to deteriorate. In April 2014,
Hayes took the child from Turkey to Kentucky and informed
Pliego she would not return. In response, in August 2014,
Pliego filed his first petition for the child's return
under the International Child Abduction Remedies Act, 22
U.S.C. §§ 9001-9011 (2012) ("ICARA"),
which implements the Convention on the Civil Aspects of
International Child Abduction, Oct. 10, 1980, 1343 U.N.T.S.
89; 19 I.L.M. 1501 (the "Hague Abduction
Convention" or the "Convention"). Pliego filed
his petition in the United States District Court for the
Western District of Kentucky. As required under ICARA and the
Hague Abduction Convention, the court first determined the
child's country of habitual residence, which in this case
was Turkey. Pliego v. Hayes, 86 F.Supp.3d 678,
696-97 (W.D. Ky. 2015) ("Pliego I"). The
court acknowledged that none of the family members were
Turkish, but nevertheless reasoned that the child had spent
most of his young life there. Id. Next, the court
held that the removal of the child from Turkey violated
Pliego's joint custody rights under the laws of that
country. Id. at 697-98. The court held that Pliego
had therefore established a prima facie case that the child
should be returned to Turkey, shifting the burden to Hayes to
present her affirmative defenses. Id.
invoked Article 13(b) of the Hague Abduction Convention,
which creates an affirmative defense to a prima facie case
for a child's return if "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." Hague Abduction Convention art.
13(b). Hayes alleged that Pliego had abused the child,
exposing him to "physical or psychological harm."
In particular, she alleged that Pliego used to yell at,
pinch, and grab the child, leaving bruises, and also that
Pliego had "force-fed" the child by continuing to
put food in his mouth after he was full, causing him to
vomit. Hayes alleged that Pliego had abused her as well. In
particular, she alleged that Pliego had, on various
occasions, flown into a rage and squeezed, grabbed, or pushed
her, leaving bruises; that Pliego had verbally abused and
threatened her in front the child; and that he had raped her
on multiple occasions. Pliego denied the allegations. The
court carefully considered Hayes's allegations and noted
that it found both Pliego and Hayes to be credible witnesses,
and therefore reasoned that "the truth lies somewhere in
the middle." Pliego I, 86 F.Supp.3d at 701.
Accordingly, without passing judgment on whether the abuse
had occurred, the court held that the evidence of the
"physical or psychological harm" was not
"clear and convincing, " as would be required to
prevent the child's return. Id. at 702-03
(applying 22 U.S.C. § 9003(e)(2) (2012)). Therefore, the
court held that Hayes could not overcome Pliego's prima
facie case that the child had been wrongfully removed.
Id. The court ordered that the child be returned to
Turkey. Id. at 703. There was no appeal.
a few days of the court's order in January 2015, Pliego
and the child returned to Turkey. Hayes returned to Turkey
separately. Hayes petitioned one Turkish court for an exit
ban on the child, which was granted. She petitioned another
Turkish court for temporary custody, which was also granted.
On February 19, with the temporary custody order in hand,
Hayes went to Pliego's home with several Turkish police
officers and took the child.
then filed a motion in Turkish court to dismiss Hayes's
temporary custody order. As noted above, Pliego is a Spanish
diplomat. He therefore asserted in Turkish court that he
enjoyed diplomatic immunity, such that a Turkish court could
not adjudicate the custody of his child. See Vienna
Convention on Diplomatic Relations art. 31, Apr. 18, 1961, 23
U.S.T. 3227, 500 U.N.T.S. 95. In support of this petition,
the Turkish Ministry of Foreign Affairs, the Turkish Ministry
of Justice, and the Ankara Prosecutor sent letters to the
Turkish court suggesting that the court respect Pliego's
immunity. The Turkish court granted Pliego's request,
dismissing the temporary custody order that had been in
then tried to get the child back. In March 2015, Pliego and
Turkish police officers arrived at the address that Hayes had
given the Turkish courts. However, both Hayes and the child
had disappeared. Hayes had learned that her temporary custody
order had been dismissed and had taken the child to a
"safe house" established to protect victims of
domestic violence. By moving from safe house to safe house,
Hayes and the child were able to evade detection by Turkish
police. After a month or so of such travel, Hayes left Turkey
by boat, which allowed her to circumvent the exit ban on the
child. She traveled by boat from Turkey to Albania, and then
flew to the United States in early April.
2015, Pliego filed his second petition in the same U.S.
district court for the return of the child under ICARA.
Pending its decision, the court granted Pliego temporary
custody of the child within Kentucky or Tennessee, and Pliego
took the child to live with him in Nashville, Tennessee,
during the litigation. Pliego also took steps for his
diplomatic immunity to be waived, which would be necessary
for Turkish courts to adjudicate the child's permanent
custody if his second ICARA petition was successful and the
child was returned to Turkey. Accordingly, in May and July of
2015, the Spanish Embassy sent diplomatic notes to Turkish
authorities waiving Pliego's immunity of jurisdiction and
execution with regard to the custody case. However, these
notes emphasized that this waiver applied only to the custody
dispute for Pliego's son, and not to any other civil or
criminal matters connected to it.
the child's stay with Pliego in Nashville, Hayes was
allowed visits in public places. During one of these visits,
Hayes noticed markings on the child's body, which she
believed to be bruises. She photographed these bruises,
showed them to the child's doctor, and later submitted
the photographs to the district court. The doctor could not
conclude whether the bruises were evidence of abuse, but
nevertheless alerted child services. Pliego and his mother,
who was also staying in Nashville, later testified that ...