United States District Court, W.D. Kentucky, Paducah Division
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND OPINION
THOMAS B. RUSSELL, Senior District Judge.
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).
This matter is before the court on Petitioner Mario Luis Gonzalez Pliego's Second Petition for Return of Child Under the International Child Abduction Remedies Act ("ICARA") and the Hague Convention. (Docket No. 1). The Court held evidentiary hearings on July 9, 2015 and July 19, 2015. 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 AND PROCEDURAL HISTORY
Amanda Leigh Hayes ("Hayes") and Mario Luis Gonzalez Pliego ("Pliego") are the parents of a minor child who is the subject of this litigation. This is Pliego's second Petition pursuant to the Hague Convention, and the implementing legislation in the United States, ICARA, set forth in 42 U.S.C. § 11601, et seq.
The Court will briefly review the facts of the first Hague Petition. In 2014, the family was living in Ankara, Turkey. On April 26, 2014, Hayes traveled with the child to Kentucky, where she filed for divorce and custody in Christian County, Kentucky and informed Pliego that she would not be returning to Turkey and intended to keep the child with her in the United States. After significant litigation, the Court held an evidentiary hearing on December 18 and 19, 2014. The Court issued its Findings of Fact, Conclusions of Law, and Opinion on January 21, 2015, finding that Pliego had met the requirements of his prima facie case under ICARA, and that Hayes had not satisfied her burden to prove any affirmative defenses. Pliego v. Hayes, 2015 WL 269207 (W.D. Ky. Jan, 21, 2015) (hereinafter Pliego I ). This Court held that the child's habitual residence was Turkey, and that the child was to be returned to Turkey for the resolution of all custody matters. Id.
Events relating to the second Petition
After more litigation in this Court to effectuate the transfer of the child from Hayes to Pliego, Pliego returned with the child to Ankara, Turkey on February 6, 2015, where they resumed their routines. The child was re-enrolled in the Ankara English pre-school and visited his regular pediatrician. (Docket No. 1, p. 26). Pliego filed this Court's opinion with the Ankara 11th Family Court, requesting custody of the child.
Litigation in Turkey
Hayes and her mother, Judy Hall, also traveled to Turkey, arriving there before Pliego and the child. When she arrived, Hayes filed two lawsuits in Istanbul on January 30, 2015. In the 5th Family Court of Istanbul she requested temporary custody and an exit ban for the child, and in the 7th Family Court of Istanbul she filed for divorce. The 5th Family Court of Istanbul granted an exit ban for the child. As part of Hayes's divorce action in the 7th Family Court of Istanbul, she was granted ex parte temporary custody in an order dated February 13, 2015. Around February 12, 2015, Hayes also filed for custody of the child in the 8th Family Court of Ankara. On February 18, 2015, the 8th Family Court of Ankara issued an exit ban for the child as well, and reserved further ruling.
On February 19, 2015, without advance notice to Pliego, Turkish police executed the ex parte order from the 7th Family Court of Istanbul giving Hayes temporary custody of the child. The parties dispute how the custody order was executed. According to Pliego:
That evening, about eight armed Turkish police officers - accompanied by Ms. Hayes, Ms. Hayes' two Turkish attorneys, a social worker, and a judicial agent- violently broke down the door to Mr. Pliego's home and forcibly took the child from his father.... They began pushing and with the force of 8 officers, Ms. Hayes' lawyer, and Ms. Hayes herself, the door broke and they rushed into the home, found the child, and left.
(Docket No. 3). Both Hayes, in her testimony, and the Turkish Police Report contradict this account, stating that no door was forced. (Docket No. 18-2). Pliego testified that the Turkish Police Report was inaccurate, and that the police apologized in a note for their actions that evening.
Hayes testified that when the child was returned to her, he was extremely clingy, ran and hid when the doorbell rang, would yell when he could not see her, started wetting the bed, kept his head down while eating dinner, and had nightmares.
Pliego's diplomatic immunity in Turkey
After the Turkish police took the child, the Spanish government raised the issue of Pliego's diplomatic immunity in the Istanbul court "as a reaction to their Spanish government foreign worker's home being invaded by the Turkish police, without notice, and his child being taken from him in the middle of the night with such force." (Docket No. 3).
Pliego moved to set aside the ex parte temporary order issued by the Istanbul 7th Family Court on March 2, 2015. This request was granted in an order on March 5, 2015. The order stated that the Turkish court had no jurisdiction over this issue due to Pliego's diplomatic immunity and ordered the child returned to the father (thus preserving the status quo that existed when Pliego entered Turkey with the child). Hayes testified that she believed this to be a dismissal of the case, and believed that it would also end the exit ban that she had requested for the child.
In regards to his diplomatic immunity, Pliego testified that he requested a waiver of his immunity so that he could litigate the custody issue in Turkey. He stated that once waived, his immunity cannot be re-asserted. Pliego filed several documents with the Court in support of his claim that he waived immunity. Because this issue constitutes a large portion of the parties' arguments relating to this Petition, the Court will review the exhibits on this issue in detail.
Pliego filed a document dated April 6, 2015 where he requested to merge the Istanbul and Ankara cases to proceed before the 8th Family Court of Ankara. This document states that:
The plaintiff, Mario Gonzalez Pliego, diplomat, First Secretary of the Embassy of Spain in Ankara has immunity from jurisdiction under Articles 29 and 36 of the Vienna Convention of 1961, of which Turkey is a party though the Law number 3042, Nevertheless once this case merges with the file number "2015/232" of the 8th Family Court of Ankara it could be an obstacle to judge the plaintiff and for this reason, only for this custody case and pursuant to article 32 of the Vienna Convention, his immunity has been waived by the Spanish State.
(Docket No. 22-2). Pliego also submitted a letter written to the Ankara Family Court. In part, it states:
In this case, in accordance with articles 32.1 and 32, 2 of the Vienna Convention on Diplomatic Relations, the waiver of my diplomatic immunity of jurisdiction has been authorised by the Spanish State, final holder of the immunity of the diplomatic agent, through Verbal Note number 135/15 dated on the 4th of May 2015 directed to the Ministry of Foreign Affairs of Turkey;
However, this waiver of the diplomatic immunity of jurisdiction is only authorized by the Spanish State, final holder of the immunity of the diplomatic agent, for the custody issue of my son and, in accordance with the restrictive terms and prevalent interpretation of the Vienna Convention, it does not apply to any other concurrent procedure or with regards to other issues of administrave, civil or criminal nature connected to it, namely the actions for divorce and for the false allegations of maltreatment, originally pursued by Ms. Hayes before the 7th and 5th Family Court of Istanbul which have already been closed by the respective judges...
(Docket No. 22-3).
Pliego submitted two letters from Rafael Mendivil Peydro, Ambassador of Spain to Turkey, to Judge Thomas Russell. The first, dated July 1, 2015, states that the waiver of Pliego's diplomatic immunity has been authorized by the Spanish State. He specifies that "[t]he waiver is only "for the custody case of [Pliego's] son, pending in Turkey, and in accordance with the restrictive terms and prevalent interpretation of the Vienna Convention. This waiver does not apply to any other procedure or with regards to other issues of administrative, civil or criminal nature connected to it...., " however it notes that Pliego cannot invoke immunity in respect to any counterclaim directly connected with the principal claim. (Docket No. 22-6).
A second letter from Peydro to Judge Thomas Russell, dated July 2, 2015, specifies that immunity was communicated through "Verbal Note number 135/15 dated on the 4th of May 2015 for the immunity of jurisdiction, and Verbal Note number 204/15 dated on the 2nd of July 2015 for the immunity of execution, which where was addressed to the Ministry of Foreign Affairs of Turkey." (Docket No. 22-6). It also states that the waiver of "immunity of jurisdiction and execution is effective from that moment that those verbal notes where sent." Id.
Pliego submitted a letter to the 11th Ankara Family Court, dated July 2, 2015, where he echoes the sentiments regarding when his immunity was waived. He notes again that the immunity "does not apply to any other procedure or with regards to other issues of administrative, civil or criminal nature connected to it...." (Docket No. 22-7).
Finally, Pliego submitted a third Verbal Note, #225/15, dated July 19, 2015. This Note was from the Embassy of the Kingdom of Spain directed to the Ministry of Foreign Affairs of the Republic of Turkey. It clarifies that Pliego's diplomatic immunity is waived in both the Ankara 8th Family Court and 11th Family Courts, noting that the waiver of ...