In Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.) Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and is three years old. Hayes was a citizen of the United States, and Pliego is a citizen of Spain. Hayes has filed for divorce and custody in Kentucky, while Pliego has filed for divorce and custody in Spain. Pliego is a career diplomat at the Spanish Embassy and as such, the family has lived in different countries during ALG's lifetime. They lived in Jakarta, Indonesia until July 2012 when they moved to Ankara, Turkey. Pliego was currently still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of return was to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning and intended to keep ALG with her in Kentucky. Currently, Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.
Hayes moved for summary judgment, arguing that Spain was not ALG's habitual
residence. She alleged that ALG was born in Kentucky and had never
lived in Spain, spending a total of 46 days there over a series of four trips. She
noted that the Convention seeks to remedy situations where the victim of an
abduction"suffers the sudden upsetting of his stability, the traumatic loss of
contact with the parent who has been in charge of his upbringing, the uncertainty
and frustration which comes from the necessity to adapt to a strange language,
unfamiliar cultural conditions, and unknown teachers and relatives." She stated that "the child's remaining with his mother, who has been his primary care provider since his birth, in the United States will not result in the manifestation of these concerns, but an order of return to Spain would do so in this case." In response, Petitioner noted that his "burden at trial is only to show that the child's habitual residence is a contacting country to the Hague Convention, not a specific country, i.e. Spain." Additionally, he argued that there were multiple genuine issues of material fact in dispute regarding ALG's habitual residence, any one of which precluded summary judgment.
The Court found that there were multiple genuine disputes of material fact
regarding ALG's habitual residence, and that it would be inappropriate to resolve
these matters on summary judgment at this time. Thus, this motion was denied.
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