US grandparents lose international custody battle

AP News
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Posted: Dec 30, 2009 5:06 PM

The Idaho Supreme Court ruled Wednesday that two orphaned children will remain with their grandmother in Argentina, not with family members in California who also wanted custody.

The ruling means that Alden and Aliana Heiss will stay with Violeta Conti in Ushuaia, a region dubbed "the end of the world" by locals.

The children's parents, Karl Heiss and Marisa Bauducco-Heiss, of Bonners Ferry, Idaho, were killed in a car crash near Seattle last year. Aliana, who was 10 at the time of the crash, sustained severe brain damage in the crash; Alden, who was 6, suffered whiplash but has fully recovered.

The parents had handwritten wills granting custody to Conti, but paternal grandparents Fred and Anna Belle Heiss, of Malibu, Calif., sought custody. They contended Aliana needed medical care only available in the U.S. and that Alden would heal better from the emotional trauma if he was in a familiar setting.

"Oh, this is terrible," Anna Belle Heiss said after learning of the ruling. "So my grandchildren are gone for good, my children are gone for good _ you have no idea how terrible this is."

Conti said after the ruling that it was "tremendous news."

"We had no idea it would come so quickly," she added.

In the 14-page unanimous ruling, Chief Justice Daniel Eismann said state law, which places the deceased parents' wishes first when determining guardianship, doesn't jibe with the Heisses' contention that the best interests of the children should be the primary factor in determining custody.

"It is the legislature that has the power to change the statutes, not this Court," Eismann wrote. "The legislature obviously believed that parents should be able to direct who will have guardianship of their unmarried minor children in the event of the parents' deaths."

Eismann said the father, Karl Heiss, was "empowered" to choose his wife's mother as the children's guardian under state law.

Besides upholding the parents' choice of Conti as guardian, the high court also overturned a lower court ruling that made the Heisses co-guardians while the children visit for one month of the year.

That arrangement could cause more problems than it solved, Eismann wrote.

The custody battle flared shortly after the Oct. 2008 car crash, while Aliana was still on life support at a Seattle hospital and doctors were unsure if she would survive. With no translator available, Conti and her family were left trying to understand doctors' opinions.

The Heisses said Conti wanted to pull life support, but Conti said she was always hopeful the child would recover. The Heisses got the courts to appoint a temporary third-party guardian, stopping doctors from pulling Aliana's breathing tube as the custody battle wended its way through the courts.

After a lower court granted Conti custody earlier this year, the Heisses said they had lost the children's passports, delaying their departure for Argentina. Conti was eventually able to get new passports from the U.S. State Department, but said she feared the situation would recur during the first court-appointed visitation with the children.

The Heisses said they fear Conti won't turn over the children for their visit, which they hope to have in January. They maintained Conti had limited opportunities to contact the children; Conti said they went weeks without attempting to make contact with Alden or Aliana.

Anna Belle Heiss said she doesn't yet know what the next step for the family will be, but that she doubted Conti would follow a court order granting the Heisses one month of visitation with the children each year.

"Visitation means nothing to them, they tell so many lies it's unbelievable. They are going to keep these children captive there," Heiss said.

Conti said she was optimistic that "with this ruling, they will think and act in a better way, and we can avoid arguments."

She also said she was pleased that the state high court ordered the Heiss family to pay the costs for the appeal.

"With this, now they are going to think twice before going further," she said. "Until now, the costs have been much more for our side, since we get paid in pesos and the costs are all in dollars. We had to invest in assuring the rights that they (Karl and Marisa) wanted us to have."

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Associated Press Writer Mike Warren in Buenos Aires, Argentina, contributed to this story.