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Pliego v. Hayes

United States Court of Appeals, Sixth Circuit

December 5, 2016

Mario Luis González Pliego, Petitioner-Appellee,
v.
Amanda Leigh Hayes, Respondent-Appellant.

          Argued: September 14, 2016

         Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 5:15-cv-00146-Thomas B. Russell, District Judge.

         ARGUED:

          Laurel King-Davis, KENTUCKY LEGAL AID, Madisonville, Kentucky, for Appellant.

          Rebecca K. McKelvey, STITES & HARBISON PLLC, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Laurel King-Davis, KENTUCKY LEGAL AID, Madisonville, Kentucky, for Appellant.

          Rebecca K. McKelvey, Brenton H. Lankford, STITES & HARBISON PLLC, Nashville, Tennessee, for Appellee.

          Before: ROGERS, SUTTON, and COOK, Circuit Judges.

          OPINION

          ROGERS, Circuit Judge.

         The 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.

         I.

         Respondent 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.

         At some 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.

         Hayes 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.

         Within 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.

         Pliego 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 Hayes's favor.

         Pliego 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.

         In June 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.

         During 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 ...


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