Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016)

INCADAT legal file Hague parental abduction

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The case concerns a child born in 2011 to a Spanish father and an American Mother. The father was working as a diplomat in Turkey at the time of the wrongful removal. In April 2014, the mother traveled to Kentucky, United States with the child and made a unilateral decision not to return. The father filed a return application with the District Court for the Western District of Kentucky (the District Court). The District Court ordered the child’s returned to Turkey in January 2015, finding that the evidence of alleged physical or psychological harm submitted in support of the mother’s argument that return should be refused was insufficiently ?clear and convincing” (See INCADAT Ref HC/E/US 1385). This decision was not appealed.
Shortly thereafter, the mother returned to Turkey and obtained an exit ban for the child and a temporary custody order from a Turkish court. The father filed a motion in Turkish court to dismiss the mother’s temporary custody order on grounds of his diplomatic immunity under Article 31 of the 1961 Vienna Convention on Diplomatic Relations. The temporary custody order was quashed and the father attempted to reclaim his child, who had by then disappeared with the mother. She left Turkey for Albania by boat, and traveled to the United States in April 2015.
In June 2015, the father filed an application for return before the same District Court for the second time. Pending its final decision, the District Court granted him temporary custody within Kentucky or Tennessee. The father took steps to waive his diplomatic immunity in Turkey, in order to enable the Turkish courts to adjudicate custody upon the child’s return. His diplomatic immunity was expressly waived by the Spanish Embassy for the determination of custody only, and not for any related civil or criminal matters.
The mother argued that custody could not be properly adjudicated nor the child protected from abuse in Turkey due to the father’s diplomatic status, and that the father had undue influence with the Turkish authorities. She asserted that this amounted to an ?intolerable situation” under Article 13(1)(b) of the 1980 Hague Child Abduction Convention, and that return should therefore be refused. The District Court did not consider these arguments to be persuasive, accepted the father’s explanation that evidence of bruises on the child’s body submitted by the mother were actually mosquito bites, and ordered the child’s return for the second time.