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. They had no TV or video games but read books constantly, and the kids created art and music when they weren’t outside playing.

Bilingual and bicultural, the family didn’t quite fit with either country’s mainstream culture. Theirs was a “hippie, peace and love” community in the wilderness, as Marisa’s mother, Violeta Conti, saw it — a place where family and friends could reinforce their values.

“Marisa and Karl weren’t interested in accumulating things,” Conti recalled. “They found what they needed to live well, and nothing more. … Not everyone in the world has this capacity. 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 from a yellow legal pad, his in English and hers in Spanish?

They mailed it to their good friend Libby Harvey for safekeeping, and for six years it sat in a desk drawer 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 Tierra del Fuego, at the southern tip of South America.

“Nobody asked me to, but I just went and got it,” Harvey says of the will. As they went over it, “they said nothing about changing anything.”

Two days later, she saw the family off — but they made it only two hours down rainy Interstate 5 through western Washington’s verdant valleys.

When traffic unexpectedly halted, a truck, unable to stop, veered into their lane. Their 2005 Subaru Legacy was forced through a cable barrier and into oncoming traffic, where a tractor-trailer hit them head-on.

The parents were killed instantly.

Emergency crews worked desperately to free Aliana from the twisted metal. Then 10 years old and so precocious she devoured Harry Potter books in two days, she suffered catastrophic brain damage.

Her brother, 6-year-old Alden, was in a child safety seat. He 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.

But then what? How would these sudden orphans — one now severely handicapped — grow up? Who would raise them? And where? In sunny California or in Ushuaia, which proudly calls itself “the end of the world”?

Karl and Marisa, whose love had managed to erase thousands of miles, named five guardians in their will, with specific instructions for how they should work together.

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. But their dream was to live in the wilderness — and they found it in the Idaho panhandle community of Bonners Ferry, tucked amid the Selkirk Mountains, just south of Canada.

For Karl, the area evoked memories of backpacking trips he took as a teen in the Sierras while growing up in a once-rural neighborhood in Malibu, now better known as a home to movie stars. Marisa loved the close-knit nature of the community, where her commitment to a simple lifestyle and focus on her children was embraced much as it would have been in Ushuaia, the hometown she had left years before.

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. Both towns have a village feel, even though Ushuaia draws tourists as an exotic port of call for cruise ships.

Karl and Marisa kept a foot in each world. From their home in Idaho — first a teepee, then a two-story house using straw bale construction for the walls, along with a fixer-upper that Karl meticulously renovated — they ran an online business selling traditional Argentine-made crafts. Their goal was never to get rich, family and friends said, but to have just enough to meet their basic needs without working outside the home. The family did nearly everything together, and each night the parents read to their children. “They kept their commitment,” Marisa’s sister Carina recalled.

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.

Though friends in Bonners Ferry doubt they planned a permanent move, Conti said, “They were coming to see where they might live.”

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

“Papa looked really bad,” the boy confided.

Sitting with him for hours, she agreed with social workers not to tell him his parents had died.

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 from their senators and governor for passports and visas. Still, it was an agonizing nine days before Marisa’s mother, her father Raul Bauducco, her brother Alejandro and sister Carina reached the faraway hospital.

When the Heisses arrived, the hospital had them sign papers assuming responsibility for Alden and for the comatose Aliana.

“The doctors were just striving to keep her alive,” Anna Belle said. Scans indicated about 70 percent of Aliana’s brain had been irreversibly damaged.

Normally reserved, Anna Belle is fervent when she talks about the kids — her voice urgent and imploring but seldom breaking out of its quiet tone. Her silver hair is groomed without being coiffed, her mannerisms respectful. Violeta, who like Fred and Anna Belle is a retired teacher, fits the very same description.

Maia, Karl’s sister, stayed in Aliana’s hospital room for a week and a half after the crash, hoping she’d wake up, scared she might slip away. Then Maia shared Alden’s room as he processed what happened.

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

Aliana 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, as she was doing intermittently?

The doctors explained the pros and cons. Leaving the tube increased the chance of infections and could cause vocal cord damage. However, if it were removed, it was possible she wouldn’t be able to breathe. And because she was in a halo traction device — a bulky mechanism attached to her skull and chest — they probably couldn’t reinsert the tube quickly enough to save her.

At that point, they could refuse more life-support measures and let her die, or have doctors perform an emergency tracheotomy and insert the breathing tube below her vocal cords.

“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.

Just as both sides were getting lost in translation, a hospital social worker presented copies of the will to both families.

“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.”

It wasn’t witnessed or notarized, and the Heisses figured it lacked legal authority. But its contents were not a complete surprise; both grandmothers had been told what the will would say.

“At first I thought it was some kind of joke,” Violeta said, recalling when her daughter called to discuss the will. “… I asked her if something was wrong, if she was sick. She said no, and that she and Karl just wanted to make sure that if something happened to them, that there wouldn’t be any fights between us — that everything would be laid out on paper.”

Anna Belle recalled: “Years ago, when they were heading to Argentina when Alden was a baby, Marisa had mentioned it and we didn’t think much about it. I recall her saying something about her mother would come and live in their house, and we would get the kids in Malibu for a month, and that seemed reasonable — it was pretty close to how things were normally, we’d get to go visit the kids in Idaho, they’d spend some time each year at our house.”

But in the midst of the tracheotomy debate, the document was no longer an abstraction.

“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, and began making other plans.

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 Aliana would get comparable therapy in Argentina, where health care is free. She said Spanish is a familiar tongue for both children, who would be surrounded by many nearby cousins, aunts and uncles.

Violeta said Anna Belle suggested Aliana would need years of care at Rancho Los Amigos National Rehabilitation Center, a hospital near their home in Malibu. “This really terrified me, to think that she would spend her adolescence in a place like that. She needs to be with family.”

Anna Belle said she only suggested Aliana would be treated as an outpatient there, adding, “We would never have her live in a nursing home.”

Karl’s family offered to move to Bonners Ferry and raise Aliana and Alden in their family home. Marisa’s family counter-offered, saying they could help the Heisses stay in Ushuaia.

“We begged them to come, saying we’d find them an apartment,” Carina recalled, but the Heisses declined.

Friends watched anxiously as attorneys and experts weighed life on either side of the world.

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 said evidence also gave him “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, as the will stipulated.

Both sides appealed.

The two families had been rotating custody. Now that Conti had full custody, she wanted less emotional upheaval. She 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 — that when they tried calling, Violeta would refuse to put Alden on the phone, tell them to call back, or hand the phone to Carina, who would refer them to a lawyer. Doctors stopped sharing medical information with them.

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

The Heisses, meanwhile, refused Violeta’s request for the children’s passports, and said they were lost when the judge ordered they be handed over. They also declined to sign paperwork to get the children 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.

By June, Marisa’s frustrated family asked Aliana’s doctor if she could fly.

“I told him, if it isn’t by plane, it will be by boat, and if not a boat, then on land, because one way or another SHE WILL GET THERE!” Carina recalled. The physician released the child.

By this time, the Contis had gone to the U.S. State Department, which granted the children new passports.

In September, fearing interference or a last-minute court order, 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: “She can speak, but in reality, the point isn’t simply that she can repeat phrases — it’s that she can respond with her own words. 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.

In Ushuaia now for several weeks, the children are settling into a new routine of homework, doctor visits and neighborhood walks — Carina pushing Aliana’s wheelchair as Alden hangs on to Ali’s leash.

The cozy living room is paneled in pine, tongue-in-groove carpentry that Karl did. A stereo set plays U.S. pop tunes from the 1980s, while the TV gets just two channels — as in Idaho, the family has no cable.

Alden raids his aunts’ shelves for books to read into the night, with a flashlight under the covers. He’s a second grader at the school where Violeta, Patricia and Carina were teachers.

Aliana’s calendar is filled with therapy appointments — speech, physical, music — and checkups with a pediatrician and neurologist.

The children haven’t spoken with Karl’s family since June. Fearful of being rejected or accused of harassment and hurting their chances in the appeal, Anna Belle waited weeks without trying to call. She sent pictures, a National Geographic magazine, and a package with an iPod and other things left behind at the nursing home.

When she finally summoned her courage and dialed, Violeta answered, but the call went nowhere — with the two unable or unwilling to surmount the language barrier.

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. “We have always followed all the court rulings.”

Carina is more outspoken, insisting, “What Marisa and Karl wrote isn’t just a detail, it’s exactly the central point.”

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.