Pliego v. Hayes, No. 15-5895 (6th Cir. 2016)Annotate this Case
Hayes, a U.S. citizen, married Pliego, a Spanish diplomat. Their child was born in 2011. In 2012, the family moved to Turkey, where Pliego served in the Spanish embassy. In 2014, Hayes took the child to Kentucky, stating she would not return. Pliego sought the child’s return under the International Child Abduction Remedies Act, 22 U.S.C. 9001–9011 (ICARA), which implements the Hague Abduction Convention. The district court determined the child’s country of habitual residence was Turkey and that removal of the child violated Pliego’s joint custody rights under Turkish law. Convention Article 13(b) creates a defense to a child’s return if “there is a grave risk” of “physical or psychological harm” or “an intolerable situation.” Hayes alleged, and Pliego denied, that Pliego had abused her and the child. The court concluded that the evidence of “physical or psychological harm” was not “clear and convincing.” Pliego and the child returned to Turkey. Hayes followed and obtained temporary custody from a Turkish court. That court subsequently dismissed the temporary custody order based on Pliego’s diplomatic status, but Hayes and the child had fled to the United States. Pliego filed his second ICARA petition; the court granted Pliego temporary custody while Pliego waived diplomatic immunity to seek permanent custody in Turkey. During visitation, Hayes photographed bruises on the child; she alleged that Turkish courts could not protect the child due to Pliego’s diplomatic status. The court found credible Pliego’s and his mother’s testimony that the “bruises” were actually mosquito bites, held that custody litigation could proceed in Turkey, held that Hayes had failed to make out a defense under Article 13(b), and awarded Pliego $100,471.18 in fees and costs. The Sixth Circuit affirmed. The Spanish government’s waiver of Pliego’s diplomatic immunity sufficiently permits the Turkish courts to adjudicate custody.