[Colombia] [Petition granted]
In Ruiz v
Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)the District Court found that
in 2014, Petitioner was deported to
Colombia. Sometime in 2015, Respondent moved with K.P.C.A. to Colombia to live
with the Petitioner. Though Petitioner and Respondent never married, the family
lived together in Medellín, Colombia from sometime in 2015 until May 28,
2021.Colombian law requires that, before a child leaves Colombia with one
parent or a third party, the parent remaining in Colombia sign a “Permiso Para
Salir Del Pais.” This document authorizes the child to be out of the country
for the dates specified in the document. Petitioner signed and notarized a
Permiso Para Salir Del Pais authorizing K.P.C.A. to travel to the United States
from May 28, 2021 through June 17, 2021. At the point that Petitioner signed
the travel authorization, it was clear that the trip was to be no more than
three-weeks. However, at some point between May 28 and June 17, Respondent
decided not to return as planned. She cancelled her ticket and stayed in the
United States with K.P.C.A. In October 2021, it became clear to Petitioner that
Respondent had no intentions of ever returning. This petition was filed on June
9, 2022 pursuant to Article 3 of the Convention. The
Court found that the retention of K.P.C.A. in the United States as of June 18,
2021 was wrongful. It further finds that Respondent did not meet her burden of
proving an affirmative defense under the Convention. K.P.C.A. did not
articulate a particularized objection to returning to Colombia sufficient to
meet the mature-child-objection defense. Respondent failed to meet her burden
as to this affirmative defense. Respondent failed to meet her burden
concerning consent. Nor was there evidence presented of formal acquiescence,
such as testimony in a judicial proceeding or a convincing written renunciation
of rights. Respondent raised the well-settled
defense, but the Court found that it is not available to her as a matter of law
since Petitioner filed his Petition within one year of the wrongful retention.
Pursuant to Article 13(b) of the Convention, courts are not required to order a
child to return where “there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation.” Respondent bears the burden of proving this
defense by clear and convincing evidence. Respondent put forth minimal evidence
in support. She submitted the United States State Department’s travel advisory
for Colombia as well as some evidence that Petitioner had previous issues with
drugs and alcohol. Both Respondent and K.P.C.A. stated that they had never
witnessed any crime or act of terrorism in Colombia, or any reasonable risk of
harm at the hands of Petitioner. This did not meet the standard to show that
K.P.C.A. would be in a grave risk of harm if returned to Colombia.
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