Petitioner Father sought the return of his minor child to Colombia after the Respondent Mother wrongfully retained the child from Colombia in New York. The only issue at trial in May 2022 was whether it would expose the child to a grave risk of harm to return the child to Colombia.

The parents met in or around 2011, while the Mother worked in a sex club. The Father offered to support her if she quit this job and abstained from drug and alcohol use. For the first 2 years of their relationship, the court concluded that Father was abusive towards Mother, frequently bringing her to strip clubs, brothels, and sex clubs, where he would engage in sexual acts with sex workers in front of her. Mother testified that Father would be physically and verbally abusive towards her, asserting that he would get drunk and say awful things, grab her neck and choke her, and bite her to the point of leaving marks. After a fight between the two, which, on several occasions, resulted in neighbors calling the police, Mother threatened to leave. She said that prompted the Father to threaten to jump from the 7th-floor balcony. In written testimony, Father denied ever being abusive or violent towards the Mother.

From 2013 to August 2014, the couple moved from Medellin to Bogota, where Mother attended university and the couple lived together. Mother testified that Father continued his abuse, including isolating her, not allowing her to leave, but to attend classes, and not permitting her to work. After the child was born in August 2014, the Mother testified that she told Father she would not return to the brothels with him, and that provoked him to be violent again. She also stated that the Father threatened to use her past as a sex worker to take their son away from her. Mother also stated that the Father would not permit her to take their son outside of Colombia to New York to see her family when they moved there. Finally, in August – September 2016, Mother and child did travel to NY.

During trial, the court reflected that the Mother produced virtually no evidence that the child witnessed any of the abuse described by Mother. When asked if the child observed the acts, the Mother acknowledged he had, but that he was a baby at the time, and therefore did not remember. Mother testified that she did seek help from authorities in Colombia, but they never “paid attention to her.” The couple ultimately separated in or around early 2018. After separating, the couple shared custody on an informal basis, with the Father having the child for about 60 days each calendar year. The Father apparently also paid Mother’s rent and utilities. Between 2018 – 2020, Mother would travel outside of Colombia, leaving the child with the Father for days or weeks at a time. The trip to NY with Mother and Child in September 2020 was agreed to, with a return date of October 7, 2020. Mother initially lied and told Father that her flight had been cancelled (due to the COVID cancellations that were widespread). Weeks later, she ultimately enrolled the child in school in NY and married her boyfriend. On about December 12/13, 2020, for the first time, by text message, Mother confirmed she was not returning. In trying to locate the Mother, the Father created a website with a private link, and sent it to many of her relatives. In the site, he included old photographs and narratives and videos about Mother’s prior employment as a sex worker. The parties made competing complaints of domestic violence against each other in mid-2021 in the Colombian courts, with Mother’s being dismissed for lack of jurisdiction.

Throughout, the court did credit the Mother’s testimony, but made reference, on numerous occasions, that it was high-level or general in nature, and therefore much was not given much weight. It was often not followed up with additional evidence (like papers filed with the authorities). She apparently only testified to one specific instance of physical contact by the Father to the child, five years ago (something the court described as “disciplinary in nature” – a spanking). The Court also accounted for the various times that Mother left the Child alone in Father’s care while she traveled. The court also considered the Father’s abuse of the Mother, but confirmed that it must “seriously endanger the child” to warrant a finding of grave risk. Ultimately, the court found that she presented credible evidence of the Father’s abuse of her, but did not connect that to a present or future harm to the child. The most recent incident that Mother shared between her and the Father was November 2017, and there was no evidence of abuse during the period after they separated, nor did the Mother take any attempts to remove the child from the Father, instead establishing an informal custody arrangement.

The Father presented an alternative argument that there are ameliorative measures in Colombia to nonetheless protect the child, but because the court found no grave risk, it did not consider this argument. Therefore, the child was ordered returned to Colombia.