United States District Court, W.D. Kentucky, Paducah Division
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For Mario Luis Gonzalez Pliego, Plaintiff: Brenton H. Lankford, Rebecca K. McKelvey, LEAD ATTORNEYS, Stites & Harbison, PLLC - Nashville, Nashville, TN; Ian T. Ramsey, LEAD ATTORNEY, Stites & Harbison, PLLC - Louisville, Louisville, KY.
For Amanda Leigh Hayes, Defendant: William G. Deatherage, Jr., LEAD ATTORNEY, Deatherage, Myers & Lackey, PLLC, Hopkinsville, KY.
Thomas B. Russell, Senior United States District Judge.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND OPINION
This is a Petition for Return of Child pursuant to 42 U.S.C. § 11601, et seq., the International Child Abduction Remedies Act, which implements the Hague Convention on the Civil Aspects of International Child Abduction. This Court has original jurisdiction under 42 U.S.C. § 11603(a).
The Court held an evidentiary hearing on December 18 and 19, 2014. The Court now issues the following written Findings of Fact and Conclusions of Law in support of its resolution of this matter.
FINDINGS OF FACT
Amanda Leigh Hayes and Mario Luis Gonzalez Pliego are the parents of a minor child who is the subject of this litigation. Hayes grew up in Christian County, Kentucky and is a citizen of the United States. Pliego grew up in Barcelona, Spain and is a citizen of Spain. In 2001, Hayes began graduate school at the University of Michigan in Ann Arbor, Michigan focusing in Near Eastern Studies. As part of her studies, she traveled to Germany in the summer of 2001 to study German at the Goethe Institute. While there, Hayes met Pliego. The parties began dating, and continued their relationship after Hayes returned to the United States. In 2005, Pliego became a Spanish diplomat, and in 2007, Hayes moved to Madrid, Spain, where the parties established a civil union. Hayes worked at the Scandinavian School, teaching preschool and kindergarten. The parties were formally married in 2009 in Barcelona, Spain, and were posted in Indonesia beginning August 1, 2009. Hayes worked at the Australian International School through December of 2010.
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 is 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.
While in Turkey, the child attended " Yapa" ; Pliego characterized Yapa as a school, while Hayes testified that it was a recreational center where mothers and children paint, socialize, and play with toys. Hayes stated that she and the child usually attended Yapa one or two hours a week. The family spoke English and Spanish at the home, and the child picked up " a few words and phrases" in Turkish. The child later attended Ankara English Preschool, which teaches in both English and Turkish. The child attended the preschool three to five mornings per week. The child frequently played in the park across the street from the parties' home, and attended playgroups as well as weekly services at the Anglican Church. All of the child's belongings were in his room in Turkey.
Both parties submitted travel logs to illustrate where the child has lived over the course of his life. The child is 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 normally travel to Kentucky at least once per year, often accompanied by Pliego. 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 concedes 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 has filed for divorce and custody in Spain.
2. Alleged abuse of the child
The parties paint vastly different pictures of their marriage and of each other's parenting. Hayes testified that Pliego was abusive both to her and to the child, while Pliego denied the majority of such allegations. The Court will attempt to summarize both parties' contentions.
In his testimony, Pliego denied being abusive towards the child. Pliego's mother, M. Mercedes Pliego Viyuela, testified that Pliego was a good father to the child, and that he was not abusive. Viyuela stated that Pliego would sing songs with the child, play with balloons and toys, and read stories. Viyuela testified that she never saw Pliego inappropriately disciplining or neglecting the child.
Hayes testified differently regarding Pliego's parenting and events that occurred between Pliego and the child. Hayes testified that when the child was an infant, Pliego did not help out with the child during the night. She did testify that she asked Pliego to attend to the child one night around June of 2011 in Indonesia. Hayes stated that she woke up because Pliego was screaming " shut up, shut your mouth!" at the child; she went to the child's room and saw Pliego holding the child under the child's arms, shouting at him. Hayes testified that she was scared that Pliego was going to shake the child, and that she took the child and did not ask Pliego again to help during the night.
Hayes testified that she was unhappy with the housekeeper, Sutarti, that Pliego hired in Indonesia and brought to Turkey against Hayes's wishes. Hayes stated that Sutarti did not use toilet paper and wiped her feces with her hand. Hayes testified that Sutarti also kept her room in a very dirty condition and that Hayes was concerned about her hygiene. According to Hayes, Sutarti interfered with Hayes's discipline of the child by removing him from time-outs. Hayes testified that she did not like Sutarti being around the child.
Hayes testified that Pliego used inappropriate methods of discipline after the child grew older and the parties moved to Turkey. She said that Pliego would grab the child by the back of the head and once picked him up by the back of the neck. Hayes testified that Pliego would insult the child and yell at him to toughen up, to shut up, and to stop whining when the child hurt himself and cried. Hayes testified that for a period of time, Pliego would " force-feed" the child -- she alleged that Pliego would continue to feed the child, after he had indicated that he was full, by continuing to put food in the child's mouth and pushing it down toward his throat. At times, Pliego would pinch the child's nose, push the spoon in the back of his mouth,
and hold his mouth closed. When the child started crying, Pliego would wait for him to gasp for air, then would put more food in his mouth, before holding his mouth closed again. Hayes alleges that the child vomited three times after this behavior. Viyuela testified that she was present for one of the times when the child vomited. She stated that Pliego did not force-feed the child, but rather that the child vomited as a result of being sick, having a respiratory infection, and having swallowed too much mucus.
Hayes described finding various bruises on the child's body, including on the sides of his abdomen, on the backs of his thighs, and once on the back of his neck. She stated that Pliego admitted to her that the bruises were from pinching the child and from grabbing the back of his neck. In his testimony, Pliego denied bruising the child.
Hayes testified as to several incidents that she said made her fearful for the child's safety when he was around Pliego. First, during January in Istanbul, Turkey, the child was having a tantrum at breakfast and Pliego took him upstairs. At the time, the parties lived in an apartment with a three-story staircase; Hayes admitted into evidence photographs illustrating that the railing had a gap at the top of the landing that was big enough for a child to fall through. Hayes testified that Pliego left the child kicking and screaming at the top of the stairs near the space in the railing. When Hayes went to try and get the child, Pliego held her back by the shoulders, telling her that it was fine and that she was crazy.
Hayes described an incident that occurred when Hayes and her mother were painting the parties' apartment in Turkey. Hayes's mother, Judy Hall, corroborated the incident. Hall testified that she and Hayes were in the top floor of the apartment in Turkey, while Pliego and the child were across the street at the park. They had the balcony door open because they were painting, and they heard the child screaming through the door. They looked across the street and saw the child standing alone in the park. They searched for Pliego, and found him standing far away, walking away from the child. They were concerned, because Pliego had told them that wild dogs roamed in that park. Pliego testified that the child was used to being carried and that the child was just upset because Pliego asked him to walk instead. Pliego stated that the park was closed, and that the child was not at risk. Pliego also testified that he was not far from the child; the parties disputed the distance.
Both Hayes and Hall described another incident where Hall, Hayes, Pliego, and the child were sightseeing in Turkey. Hayes and Hall went into a shop to purchase pottery, while Pliego and the child were in the car, which Hayes alleges was parked in a high-traffic area. Hall testified that Pliego left the child in the car to enter the store and see " what was taking so long" before " screaming at [Hayes] to return the vase" that she had purchased. Pliego testified that it was not a high traffic area, and that the child was not in danger.
After Hayes decided to remain in Kentucky with the child in 2014, this Court issued an Order mandating Skype visitation between Pliego and the child. Hayes stated that during some of those Skype sessions with the child, Pliego would pull up his shirt. She introduced into evidence several screenshots showing Pliego topless or pulling up his shirt during Skype video sessions. Pliego testified that he lifted his shirt up to get his son's attention when he lost interest. He said he does a " gorilla dance" and plays on his stomach like drums. Hayes testified, and Pliego conceded,
that Pliego would ask the child to show Pliego his " dirty little butt" or talk about " poop and fart." Pliego said that in Spain, it is more common and acceptable to discuss " scatological" issues. Finally, Hayes testified that Pliego would pinch and rub his nipples in front of the child and said that he was trying to " teach him to one day experience the pleasure that he does." She also claimed that Pliego grabbed the child by the testicles. Pliego denied pinching his nipples or grabbing the child's testicles.
Pliego produced an exhibit with approximately 1,100 photographs of the family, and presented many photographs of Pliego and the child at varying ages and at varying locations. In these photographs, Pliego and the child are both smiling and appear happy. Hayes testified that Pliego was very conscious of his image, and staged many of the photographs, though she did not know how many.
3. Alleged domestic violence
In addition to the alleged child abuse, which the Court will discuss below, Hayes painted a picture of a controlling relationship where Pliego had the power and controlled the finances. Pliego testified, however, that Hayes had equal access to the parties' money, and that she had a Spanish bank account where she deposited her salary from teaching. He testified that he gave her his salary of approximately $6,000 per month to manage the household. He alleged that Hayes kept the accounts, paid the maid, and kept an Excel spreadsheet managing their finances. Hayes agreed that she had access to a lockbox in the home where the parties kept their valuables, and testified that she also had a bank account in Spain.
Hayes testified that the abuse began when the parties were living in Spain. During a trip to Barcelona, she testified that Pliego was concerned about pickpockets and " thought [Hayes] wasn't listening [to him] closely enough" so he squeezed her hand so hard that he bruised it. Hayes testified that after the parties moved to Indonesia, Pliego began pinching her on her upper arm so hard that it bruised whenever he " thought she wasn't listening" ; she also stated that he would grab her face and say " look at me when I'm talking to you."
Hayes testified that the abuse intensified during her pregnancy, which began in approximately in June of 2010. According to Hayes, the parties got into verbal arguments, and Pliego would scream and curse at her. Hayes testified that Pliego did not want to touch her stomach, told her that it was " gross and disgusting," referred to her child as " it," and stated that " if it weren't for that thing growing in your belly, I would throw you out in the street."
Both parties discussed an incident that occurred in Indonesia in approximately September of 2011, while Hayes was six-months pregnant. According to Hayes's testimony, Pliego became angry at her during lunch, and he ran around the table, grabbed her arm, and started yelling. She ran into the bedroom, locking the door. Pliego screamed and pounded at the door, yelling at her to " open the door you fucking bitch." Hayes told Pliego that she would open the door if he would calm down. After several minutes, Pliego told Hayes that he had calmed down, and so she opened the door. Pliego slammed it open and approached Hayes, and she backed away with her hands up. Hayes
testified that she was frightened and that she said to Pliego, " if you don't get away from me, I'm going to jump off the balcony." Pliego then left, but returned soon, roughly grabbed her shoulder, leaving bruises, and told Hayes that if she said that again, he would " punch her in the face." Hayes stated that she did not intend to actually jump, that the door to the balcony was closed, and that she could not climb over the railing, especially not in her advanced state of pregnancy. Pliego described the event differently, testifying that he believed Hayes intended to jump off of the balcony and grabbed her to prevent her from jumping.
Hayes testified that after the child was born, Pliego continued to push and verbally abuse her. Hayes testified about two incidents where Pliego 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 " if you ever mention leaving me with [the child] again, I'll kill you in your sleep."
Hayes described an incident where Pliego dropped her and the child off at home. She put the child down for a nap, then started watching a movie wearing headphones. During this time, Pliego realized that he was locked out of the apartment. Pliego knocked on the door and called Hayes repeatedly, but she did not hear him or the phone ringing. Pliego ended up calling a locksmith to let him in, then went upstairs and grabbed Hayes by the shoulders, yelling. Hayes testified that Pliego's " rage" lasted for two hours, and that he said she " shouldn't be scared, she should be terrified" and that " he was only showing 5% of what he was feeling." Hayes testified that Pliego said that he was going to take a rope and tie her phone around her neck " like a dog." Hayes stated that she texted her aunt, Frieda Utley, and told her that " things were bad" and that she was scared. Utley testified that Hayes told her over Skype and text messages about several instances of abuse, and corroborated that Hayes texted her after the incident described above.
Hayes testified that Pliego's mother, a former doctor, came to Turkey to assist Pliego following outpatient surgery to remove a mole on his back. Hayes described Pliego's behavior after his mother left as very " morbid, dark, and creepy" and stated that Pliego started talking about death frequently, including discussing the child dying. Hayes testified that Pliego described being sad about the child's upcoming birthday because it meant that the child was " one day closer to death."
Finally, Hayes testified that Pliego raped her multiple times. She stated that the parties had sex when Pliego wanted to have sex, and that he described sex as a wife's duty. Hayes testified that on three occasions in Turkey in 2013 and 2014, Pliego forced her to have anal sex against her will. During the first alleged rape, Pliego claimed that he " slipped" but continued penetrating her anally without lubricant even after Hayes yelled for Pliego to stop. Hayes testified that afterwards, she was bleeding and in pain. The second alleged rape occurred when Hayes ...