A matter of will: Custody fight over Idaho orphans becomes intercontinental tug of love

After crash, orphans torn between continents

Writing a will is an unusual act for a couple in their mid-30s, but Karl and Marisa Heiss did not do ordinary things.

An American carpenter and an Argentine social worker, they lived for a year in a teepee in a northern Idaho forest. She homeschooled their two children, teaching in Spanish and English to give them a future in both countries. The kids read or created art and music when they weren’t outside playing.

“Marisa and Karl weren’t interested in accumulating things,” Marisa’s mother, Violeta Conti recalled. “They found what they needed to live well, and nothing more. … Not everyone understands that the most important thing is that the kids are doing well.”

Was this why they drew up their will — seven sentences handwritten across two pages, his in English and hers in Spanish?

They mailed it to their friend Libby Harvey for safekeeping at her Seattle home. The family visited her in October 2008 while traveling to see Karl’s parents and sister in Malibu, Calif., and then Marisa’s big family in Ushuaia, Argentina, at the southern tip of South America.

The couple gave the will a glance but made no changes before Harvey saw the family off.

Tragically, they made it only two hours down rainy Interstate 5 when traffic unexpectedly halted, their car was forced into oncoming traffic, and a tractor-trailer hit them head-on.

The parents were killed instantly.

Emergency crews worked desperately to free 10-year-old Aliana, who suffered catastrophic brain damage.

Her brother, 6-year-old Alden, had whiplash but would recover fully. He even gave rescuers the phone number of his California grandparents.

They and his Argentine grandmother hurried to be with the children, shattered families briefly coming together in grief.

Karl and Marisa, whose love had managed to erase thousands of miles, named guardians in their will. But would their survivors — now confronting agonizing legal, medical and cultural questions — honor it?

Karl and Marisa met in Seattle, where he was writing fiction and teaching carpentry to troubled teenagers and she was working at Planned Parenthood and helping immigrants get health care. Their dream was to live in the wilderness — and they found it in the Idaho panhandle community of Bonners Ferry.

Bonners Ferry is 7,668 miles from Ushuaia, but the towns have much in common. They are snowbound much of the year and surrounded by wilderness, forcing a certain intimacy on families and neighbors.

Karl and Marisa kept a foot in each world. From their home in Idaho, they ran an online business selling traditional Argentine-made crafts.

By last year, the business was bringing in about $70,000 in annual sales, and Karl and Marisa, then 43 and 41 respectively, decided it was time for an extended trip to Argentina.

After the accident, Libby Harvey got to Harborview Medical Center in time to ride an elevator with doctors taking Aliana to the operating room. Harvey found Alden on a gurney.

“Papa looked really bad,” the boy confided.

From Malibu, Anna Belle and Fred Heiss and Karl’s sister Maia rushed to Seattle, arriving a few hours later.

The Argentine side of the family immediately sought help to get passports and visas. Still, it was nine days before Marisa’s mother, her father Raul Bauducco, her brother Alejandro and sister Carina reached the hospital.

Doctors coming and going shared opinions about the children’s care with one relative or another. No one spoke both English and Spanish fluently, leaving Alejandro to do his best as a translator.

Scans indicated about 70 percent of Aliana’s brain had been irreversibly damaged. She was hovering between a coma and unconsciousness when the first critical decision had to be made: Should the breathing tube snaking down the child’s throat be removed to let her try to breathe on her own?

Leaving the tube, doctors explained, would increase the chance of infections and could cause vocal cord damage. However, if it were removed, it was possible Aliana wouldn’t be able to breathe. And because she was in a halo traction device, they probably couldn’t reinsert the tube quickly enough to save her.

At that point, the family could refuse more life-support measures and let her die, or have doctors perform an emergency tracheotomy.

“One of the other doctors said if it was his daughter, he’d let her go,” Anna Belle said. “They said once you put the tracheotomy in, it’s harder to take it out if you later decide that the child should go. But I thought we’d deal with that, if we had to, later.”

While Marisa’s family agreed with the doctor’s suggestion of removing the tube, they opposed the tracheotomy, saying it was in God’s hands and that nature should be allowed to take its course, said Rana Longmire, Karl and Marisa’s friend who said she was in on the medical discussions that day.

“So,” she said, “there was this huge gap.”

Carina remembers this differently, saying her family, too, was optimistic for a major recovery.

During the meeting, hospital officials pulled out a copy of the will.

“In such case that we … should die,” it read, “the surviving children … should be left to the care of (in this order) Violeta Conti (mother of Marisa Bauducco) Carina Bauducco; or Alejandro Bauducco. If such possibility exists it would be our wish that they be able to raise her in our (Idaho) house. One month out of the year should be reserved for Anna & Fred Heiss (parents of Karl Heiss) to raise the children where they see fit to do so.”

Although the Heisses figured the unwitnessed document lacked legal authority, Anna Belle was worried.

“We were having this real conflict over sharing decisions …, over the breathing tube, and all of a sudden I realized that will was a question of life or death,” Anna Belle said. “The doctors said the will gives Violeta the custody over the decisions, and I was totally distraught, crying in the meeting because I thought we’d lost her (Aliana), that they’d be able to unplug her from life support.”

Karl’s family quickly hired an attorney who stopped the doctors from removing Aliana’s breathing tube pending the recommendation of a guardian ad litem, appointed by the court to neutrally represent the child’s interests. Marisa’s family also found a lawyer.

Remarkably, Aliana not only began breathing on her own but thrived, physically at least.

In April, doctors removed the halo that had stabilized her neck. By May, she was chewing her food and could say a few words. She began what will probably be years of therapy.

But her grandparents — separated first by language, now by lawyers — had very different ideas about what medical care would be best.

Karl’s family felt Aliana had to stay in the United States to get the best possible medical care, with intensive therapy in her primary language to rebuild damaged brain pathways, and that Alden also would recover from emotional trauma better if surrounded by familiar sights.

Violeta countered that the will clearly shows her side was meant to have custody, and that comparable, free therapy was available in Argentina. She said Spanish is a familiar tongue for both children.

Judge Justin Julian in Idaho considered the lengthy arguments, finally dismissing reasons the Heisses gave why Conti shouldn’t have custody, including alleged financial unfitness and language and cultural barriers. “Would that all children have a grandparent so ‘unfit’ as Violeta,” the judge commented.

Still, he also expressed “a high degree of confidence that (the Heisses) will continue to tirelessly devote themselves to the children’s best interest.”

Julian could find no reason to go against Karl and Marisa’s wishes: Conti would have full parental rights and guardianship for 11 months of the year, and the Heisses would be co-guardians for their month.

Both sides appealed.

The two families had been rotating custody. After the ruling, Conti asked the Heisses to call before visiting Aliana — “in order to avoid unpleasant situations,” Conti said. “And they never called me.”

The Heisses maintain that Conti cut them off when they tried calling, and that doctors stopped sharing medical information with them.

“I feel so bad because I was always telling Aliana, ‘We’ll take care of you,’” Anna Belle said. “One day I told her I’d be back the next morning, and they didn’t let me go back.”

The Heisses told the judge the children’s passports, requested by Violeta, were lost, and they declined to sign paperwork for new passports. “We figured it was worth waiting and keeping them here, that it was more worthwhile to keep them in this country where we knew Aliana had care,” Karl’s mother recalled.

The Contis went to the U.S. State Department, which granted the children new passports, and in September, Conti wheeled Aliana out of the nursing home for what she said would be an overnight visit. Her attorney in Seattle called the other side once they were in the air.

In Violeta’s living room now, Aliana eats yogurt spoon-fed by her Aunt Patricia, a special education teacher, who teasingly calls her Ali, the name of the family dog brought to Argentina from Idaho.

“Ali, No! Aliana!” the child insists, kicking playfully.

Violeta ponders the rehabilitation process: “It’s slow, difficult work, nothing easy, and it comes in small steps.”

With a puckish smile, Alden, now 8, responds in perfectly accented Spanish to a reporter’s questions in English, and warily observes conversation about his sister.

The children are settling into a new routine of homework, doctor visits and neighborhood walks.

Alden is a second grader at the school where Violeta, Patricia and Carina were teachers. Aliana’s calendar is filled with therapy appointments and checkups with a pediatrician and neurologist.

Karl’s family has asked to have their month of custody in January, when Ushuaia’s school break begins. They fear Marisa’s family won’t allow the children to return to the U.S., and say they’ll pursue international kidnapping charges if they don’t.

Violeta doesn’t trust the Heisses either. Her usually bright smile drops to a thin grim line when she’s asked if she fears they would prevent the children’s return to Argentina.

“We are ready to do what’s necessary to comply with what the will says,” she says quietly.

As both sides await a ruling on their appeal before the Idaho Supreme Court, there is no agreement on this or any point — except that both families love the children.

Meanwhile, the will’s simple pages have grown to a foot-high stack of documents in the court archives.

Michael Warren reported this story from Buenos Aries and Ushuaia, Argentina. Rebecca Boone reported from Bonners Ferry and Boise, Idaho.