Pliego v. Hayes
86 F. Supp. 3d 678
W.D. Ky.2015Background
- U.S. citizen mother (Hayes) and Spanish diplomat father (Pliego) share a dual‑citizen child born in Kentucky in 2011; family lived in postings including Indonesia and Turkey before the child’s 2014 retention in Kentucky.
- In April 2014 Hayes traveled to Kentucky with the child and announced she would not return; Pliego did not consent and filed an ICARA petition for the child’s return.
- Hayes alleged extensive domestic and sexual abuse by Pliego and asserted that returning the child to Turkey would pose a grave risk; she sought defenses under the Hague Convention.
- Pliego asserted the child’s habitual residence was Turkey (or Spain) and that he had custody rights under Turkish law and was exercising them when the child was retained.
- After an evidentiary hearing the court found the child’s habitual residence was Turkey, that Pliego had custody rights and was exercising them, and that Hayes failed to prove by clear and convincing evidence the grave‑risk exception.
Issues
| Issue | Plaintiff's Argument (Hayes) | Defendant's Argument (Pliego) | Held |
|---|---|---|---|
| Habitual residence of the child | Child lacks settled residence in Turkey or Spain; U.S. is home | Child lived in Turkey ~21 months and was acclimatized there | Habitual residence = Turkey |
| Existence/exercise of petitioner’s custody rights | Pliego (diplomat) may lack or be precluded from asserting Turkish custody | Under Turkish law both parents share custody; Pliego exercised custody | Pliego had custody rights under Turkish law and was exercising them |
| Consent / acquiescence defense | Pliego consented or acquiesced to child remaining in U.S. | Pliego revoked any consent before retention | No consent or acquiescence established |
| Grave‑risk / intolerable situation exception | Returning child would expose him to grave physical/psychological harm from alleged domestic/sexual abuse | Allegations uncorroborated or not rising to "grave" risk; Turkey can provide remedies | Hayes failed to prove grave risk by clear and convincing evidence; exception not established |
| Psychotherapist‑patient privilege waiver | Statements to therapist should be admitted to corroborate abuse | Pliego invoked privilege for therapy communications | Court found Pliego waived privilege by putting mental health at issue and calling psychiatrist; therapist statements considered |
Key Cases Cited
- March v. Levine, 249 F.3d 462 (6th Cir.) (Hague Convention implements return procedures to protect children from wrongful removal)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (courts must restore pre‑abduction status quo; merits of custody are not to be decided)
- Robert v. Tesson, 507 F.3d 981 (6th Cir.) (habitual residence focuses on child’s acclimatization and settled purpose, not parental shared intent)
- Simcox v. Simcox, 511 F.3d 594 (6th Cir.) (grave‑risk exception is narrow; burden is clear and convincing evidence and requires robust evaluation)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.) (habitual residence asks whether child made a country home prior to removal)
- Jaffee v. Redmond, 518 U.S. 1 (U.S.) (recognizes psychotherapist‑patient privilege; privilege may be waived)