On August 31, 2022, the U.S. District Court for the ND of Georgia ordered the parties’ minor child KPCA returned to Colombia under the Hague Abduction Convention. KPCA was born in the United States where he lived for the first five years of his life, but moved to Colombia with Respondent in 2015 (Petitioner had already been deported to Colombia in 2014), where the child resided with both parents until May 28, 2021. Petitioner signed a travel consent form authorizing KPCA to travel with Respondent to the U.S. from May 28, 2021 to June 17, 2021. During the trip, Respondent cancelled the return ticket, and did not return as scheduled. The parties communicated with one another, and in October 2021, it became clear that Respondent was not returning the child at all. In December 2021, Petitioner filed his application with the Colombian Central Authority, and he filed his return petition in the court on June 9, 2022.
The court concluded that the retention of KPCA in the U.S. became wrongful on June 18, 2021, because Petitioner did not unequivocally consent to KPCA remaining in the U.S. beyond the dates in the travel consent form. KPCA testified under oath in chambers with both attorneys present and both attorneys being allowed to ask KPCA questions. He was articulate, thoughtful, intelligent, and aware. The court found him mature, and “capable of expressing a particularized objection to returning to Colombia if he had one.” In July 2022, KPCA executed an affidavit in a custody proceeding in Georgia. In the affidavit, KPCA stated a preference to live primarily with his mother, but that he loves his father and would like to visit him on a regular and frequent basis. The court found that KPCA expressed a parental preference and not an objection to being returned to the other country. In addition, while the parties had significant exchanges over the months after June 18, 2021, they do not show Petitioner’s acquiescence. Respondent consistently seemed ambivalent as to when or if she may return, herself. In addition, Petitioner was disadvantaged because he was not legally permitted to enter the United States. Her other exceptions likewise fail – she put forth minimal evidence that a grave risk existed and no evidence as to an Article 20 exception. The now-settled exception is unavailable to her since Petitioner filed his request within one year of the wrongful retention.
The Court ordered the child returned, ordered the parties to confer about logistics for the return, and if they were unable to agree, then they would so notify the court by September 6th, and the court would set a hearing to resolve those issues.