Pliego v Hayes, 2015 WL 269207 (W.D.Ky.) [Turkey][Habitual Residence] [Grave Risk of Harm] [Petition granted]

In Pliego v Hayes, 2015 WL 269207 (W.D.Ky.)   Amanda Leigh Hayes and Mario Luis Gonzalez Pliego were the parents of a  minor child who was the subject of the litigation.  In 2005, Pliego became a Spanish diplomat, and in 2007, Hayes moved to Madrid, Spain, where the parties established a civil union.The parties were married in 2009 in Barcelona, Spain, and were posted in Indonesia beginning August 1, 2009. Hayes became pregnant in 2010. The parties agreed that Hayes would have the child in Kentucky to receive better medical care and be with her extended family.

         The child was born on March 4, 2011 in Kentucky; both parties were present for the birth. The parties applied for a Spanish passport and a Spanish diplomatic
passport for the child, both of which were granted. The child was a dual citizen of
the United States and of Spain. When the child was four weeks old and cleared to
fly, Hayes and the child returned to Indonesia, where they lived until the family
was posted in Ankara, Turkey. The child was currently 44 months old. The child was in Kentucky for the first month of his life, before returning to Indonesia in April
of 2011. The child was in Indonesia for four months, spending most of August of
2011 in Spain on vacation. The child returned to Indonesia and remained there
until June of 2012, with the exception of vacations to Australia, New Zealand,
Bali, Laos, Thailand, and Singapore. Aside from vacations, the child lived in
Indonesia for 15 months (excluding the one-month vacation to Spain, the child was
in Indonesia for 14 months). In July of 2012, the child moved to Turkey. The child
spent most of September of 2012 and May of 2013 on trips to Kentucky. With the
additional exception of two week-long trips to Spain, the child was in Turkey for
21 months (excluding the two trips to Kentucky, the child was in Turkey for 19
months).

      Hayes and Pliego agreed that Hayes and the child would travel to Kentucky to
visit Hayes's family in April of 2014. Hayes and the child left Turkey on April 6, 2014, and planned to return on May 4, 2014. Pliego registered a letter with the Spanish Embassy authorizing his family's trip to the United States, informing the Embassy that they would return at the "end of April 2014/beginning of the month of May 2014. On April 26, 2014, after Hayes arrived in Kentucky, she told Pliego that she would not be returning and intended to keep the child with her in Kentucky. Hayes conceded that Pliego did not consent to the child remaining in Kentucky. Hayes filed for divorce, custody, and for an emergency restraining order in Christian County, Kentucky, while Pliego iled for divorce and custody in Spain.

Hayes testified that Pliego was abusive both to her and to the child, while Pliego denied the majority of such allegations. The district court observed that the  United States Supreme Court recognizes a psychotherapist-patient privilege. See  Jaffee v. Redmond, 518 U .S. 1, 9-10 (1996). Specifically, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure...." The Court noted that the privilege could be waived, but declined to establish the parameters of waiver.  The Sixth Circuit has noted that "the issue of waiver of the psychotherapist-patient privilege has rarely been litigated in this circuit" and that "the precise standard of review for that issue is unclear." The Court found that Pliego waived his privilege by putting his mental health at issue. He denied bruising his wife or child during his testimony, and he called a psychiatrist to testify as to his mental health and propensity for violence. Thus, the Court considered statements made by both Hayes and Pliego in the course of their therapy sessions with Gerger.

The Court held it was bound by Sixth Circuit precedent. See  Robert, 507
F.3d 981 (6th Cir.2007) (holding that the district court should have focused
solely on the past experiences of the child, not the intentions of the parents, in
determining habitual residence). The Court must examine where, at the time of
removal, the child was present long enough to allow acclimatization, and where
this presence has a degree of settled purpose from the child's perspective. Thus, the Court helds that the child did not establish a habitual residence in Spain. Despite being born in Kentucky and possessing American citizenship, the child was only present in the United States for approximately three months total before his removal from Turkey. Thus, the United States was not the child's habitual residence. The travel logs showed that up until the time of his removal, the child lived in Turkey consistently for approximately 21 months. At the time of his removal,  the child was approximately 36 months old. All of his belongings were in his room in Turkey. Further, the child attended a playgroup, "Yapa," one or two times per week. Later, the child attended a preschool, Ankara English Preschool, between three and five mornings per week. The child frequently played in the park across the street. He attended playgroups with friends as well as weekly services at the Anglican Church.  Having a diplomat as a parent makes the child's situation somewhat unique: the child did not begin to learn Turkish, as his parents did not intend for him to stay there longer than Pliego's assignment in the country. Further, he was not a Turkish citizen, nor was he to apply for Turkish citizenship. However, the child moved to Turkey and remained there for nearly two years with the exception of travel and vacation. In determining habitual residence, the Court must "look backward in time."  Friedrich I, 983 F.2d at 1401. The child lived consistently in Turkey for the majority of the last two years of his short life. Looking at the factors articulated in Jenkins, the child engaged in social and academic activities in Turkey, as much as would reasonably be possible for a child of his age.  See 569 F.3d at 556. Further, his belongings were all in his room in Turkey. The child spent nearly two-thirds of his life before removal in Turkey; accordingly, the Court found that his presence there had a "degree of settled purpose." See  Robert, 507 F.3d at 992-93. Thus, the Court held that the child's habitual residence was Turkey, and that Pliego had satisfied this element of his prima facie case.

The court found that the  removal of the child was in breach of the petitioner's custody rights under the law of the country of habitual residence, and that the petitioner was exercising those rights at the time of the child's wrongful removal or retention.   Article 335 of the Turkish Civil Code regulates the general provisions of child custody in the country. Under the first paragraph of Article 335, "every minor child is under parental custody of his/her mother and father. Parental custody may not be removed from mother and father without a legal cause." As the father, he currently had custody of the child. It was clear from the evidence presented that he was exercising his custody rights. Because the Court determined that Pliego had custody rights and was exercising them at the time of removal, it held` that he has satisfied his prima facie case under ICARA.

        Hayes argued that the child would be in grave risk of harm if returned to Turkey. A child should not be returned to his or her habitual residence if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Simcox v..  Simcox, 511 F.3d 594, 604 (6th Cir.2007) (quoting 42 U.S.C. § 11603(e)(2)(A)). The respondent had to prove this defense by clear and convincing evidence.  Jensie, 2012 WL 5178168, at *1.

        Many of the allegations of abuse appeared to relate to Pliego's parenting methods and contributions. For example, Pliego's alleged distaste for feeding the child in the middle of the night was not relevant to the determination here. Additionally, Hayes described in detail Pliego's behavior in "force-feeding" the child. Pliego and his mother, Viyuela, both contested this description. Without corroboration,
the Court was unable to conclude that this behavior occurred, that it may occur
again, or even that it necessarily constituted abuse. Hayes did not present
evidence regarding the effect of the alleged abuse on the child. See  Walsh, 221
F.3d at 211 (noting the child's PTSD diagnosis);  Elyashiv, 353 F.Supp.2d at
398-400 (same). Compared to the magnitude of those situations where courts found a
grave risk of harm existed, these allegations do not satisfy Hayes's burden. See
e.g.,  Elyashiv, 353 F.Supp.2d at 398-400 (finding grave risk where father beat
the children once or twice a week, threatened to kill his son and wife with
weapons he kept in the house; children were diagnosed with PTSD and suicidal
thoughts);  Rodriguez, 33 F.Supp.2d at 459-60 (finding grave risk where child had
been whipped with belts, punched, and kicked, where the father threatened to kill
the children and kept a loaded gun).

    Hayes also testified that Pliego abused her. She described a marriage that
involved fighting, yelling, and heated arguments. Hayes testified that Pliego twice pushed her in the foyer of the Indonesian apartment while she was holding the child; the second time, she fell after being pushed. Hayes testified that the majority of the abuse occurred in front of the child. Further, Hayes testified that Pliego took her and the child's passports out of the house and said that he would "throw her out in the street like the dog you are," and that "if you ever mention leaving me with [the child]
again, I'll kill you in your sleep."These incidents, with a few exceptions noted
above and in the factual findings, were not corroborated by other evidence. While
it was not dispositive of the truth of her allegations, the Court noted that Hayes did not report the abuse to the authorities or present bruises to any medical personnel. While Hayes's testimony was generally credible, these events, while concerning, were not enough to constitute grave risk to the child. 

Hayes testified that on three occasions in Turkey in 2013 and 2014,
Pliego forced her to have anal sex against her will. In his testimony, Pliego
vehemently denied having anal sex or any nonconsensual sex with Hayes at any time. These allegations were not corroborated by other testimony, police reports, or medical reports. The Court found that Hayes has not satisfied her burden of proving by clear and convincing evidence that there will be a grave risk to the child were he to be returned to Turkey.

  The Court determined that the petition should be granted.