Appeal from the United States District Court
for the Western District of Kentucky at Paducah.
No. 5:15-cv-00146—Thomas B. Russell, District Judge.
Argued: September 14, 2016
Decided and Filed: December 5, 2016
Before: ROGERS, SUTTON, and COOK, Circuit Judges.
ROGERS, Circuit Judge. The Hague Abduction Convention, which is implemented by
statute in the United States, requires the return of abducted children to the state (i.e., nation) of
habitual residence, so that the courts of that state may resolve custody issues. This case involves
an exception that applies when there is clear and convincing evidence that there is a “grave risk”
that the child’s return would “place the child in an intolerable situation.” The mother is
American and the father is Spanish, but the state of habitual residence is Turkey, where the father
is assigned as a Spanish diplomat. The mother has twice removed the child to the United States,
and twice been ordered by the district court below to return the child to Turkey. The mother now
appeals the second return order, arguing that there is grave risk of an “intolerable situation”
because the father’s diplomatic status undermines the ability of the Turkish courts to properly
adjudicate custody. While the “intolerable situation” exception does extend to situations where
custody cannot be practically or legally adjudicated in the state of habitual residence, that is not
the case here because—as found by the district court—the waiver by the Spanish government of
the father’s diplomatic immunity sufficiently permits the Turkish courts to adjudicate custody.
The district court accordingly properly ordered the return of the child.