Mario Pliego v. Amanda Hayes, 843 F.3d 226

Background

Child born to U.S. mother (Hayes) and Spanish diplomat father (Pliego) while family lived in Turkey; Turkey was undisputedly the child’s country of habitual residence.
Hayes twice removed the child to the United States; Pliego filed Hague/ICARA return petitions in the Western District of Kentucky each time.
In the first proceeding the district court found Turkey the habitual residence, rejected Hayes’s Article 13(b) defense (no clear-and-convincing proof of grave risk), and ordered return; no appeal followed.
After return to Turkey Hayes obtained temporary Turkish relief but the Turkish court dismissed it after Pliego asserted diplomatic immunity; Hayes then left Turkey with the child and returned to the U.S.
On the second ICARA petition the parties again stipulated Turkey as habitual residence; Hayes argued Article 13(b)’s “intolerable situation” prong because Pliego’s diplomatic status would prevent Turkish courts from adjudicating or protecting the child.
The district court found (1) the Spanish government waived Pliego’s immunity as to the custody dispute, (2) scant evidence of undue influence or corruption, and (3) the alleged bruises were likely mosquito bites; it ordered return and awarded fees to Pliego. Hayes appealed.

Issues

Issue	Plaintiff's Argument (Hayes)	Defendant's Argument (Pliego)	Held
Whether Article 13(b)’s “intolerable situation” includes inability of the habitual-residence state to adjudicate custody	An “intolerable situation” can arise where diplomatic status prevents meaningful adjudication or protection in Turkey	Article 13(b) should be read narrowly; plaintiff cites no controlling precedent for that extension	Court: Article 13(b) can include situations where the courts of habitual residence cannot practically or legally adjudicate custody (text, purpose, and state practice support this interpretation).
Whether facts here establish an Article 13(b) intolerable situation	Diplomatic immunity, alleged undue influence, and prior abuse create real risk that Turkish courts cannot protect the child	Spanish waiver of immunity for custody plus lack of evidence of undue influence mean Turkish courts can adjudicate and protect the child	Court: District court’s factual findings (waiver, scant undue-influence evidence, bruises likely mosquito bites) are not clearly erroneous; Hayes failed to establish an intolerable situation.
Whether the district court failed to consider evidence or make adequate findings	District court compartmentalized evidence and omitted analysis of undue influence, immunity details, and prior proceeding facts	District court issued a detailed written opinion addressing evidence and made factual findings	Court: No reversible failure; findings were adequate and not clearly erroneous.
Whether this court (appellate) may award appellate fees under ICARA/Convention	Hayes did not directly contest; appellant seeks relief so appellee seeks fees for appeal	Appellee seeks fees for appellate work under Convention/ICARA fee-shifting	Court: Fee-shifting applies to the court that orders the child’s return (district court); this appellate court is not the return-ordering court and thus does not award fees here (but district court may award fees for appellate work on separate motion).

Key Cases Cited

Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (distinguishing "grave risk" and "intolerable situation"; prior treatment of Article 13(b))
Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007) (clear-error standard for district court fact findings in Hague cases)
Abbott v. Abbott, 560 U.S. 1 (2010) (Convention’s object and purpose: custody decisions belong in country of habitual residence)
Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (use of treaty text, contracting parties’ intent, and other states’ practice to interpret the Convention)
Chafin v. Chafin, 568 U.S. 165 (2013) (mootness in Hague return cases—possibility of re-return does not automatically render appeal moot)
Hollis v. O’Driscoll, 739 F.3d 108 (2d Cir. 2014) (appellate-court limitations on awarding Hague/ICARA return-related expenses)
West v. Dobrev, 735 F.3d 921 (10th Cir. 2013) (same; fee-shifting applies to the court ordering return)