In Morales v Restrepo, 2025 WL 939294 (E.D. New
York., 2025) the court granted the petition for the return of the parties’
five-year-old child, L.C., to Colombia from New York.
Petitioner, Sebastian Correa Morales, and
respondent, Juliana Escobar Restrepo, were both born in Medellin, Colombia.
Respondent lived in the United States for twenty years beginning at nine years
of age. She is a citizen of the United States and Colombia. The petitioner and
respondent met in Colombia and became romantically involved around October
2014, during which time the respondent was in Colombia for roughly three months
studying for her medical exam. Soon after the respondent returned to New York
in January 2015, the petitioner relocated to New York to live with her in July
2015. They married in New York in September 2015. Through the respondent, the petitioner
became a citizen of the United States and holds dual citizenship with Colombia.
From 2017 to 2019, the respondent attended a physician assistant program, from
which she received a master’s degree in 2019. In September 2019, when the respondent
was pregnant with L.C., the parties moved together to Florida. In October of
that same year, the respondent became certified to practice as a physician’s
assistant in the United States. Respondent gave birth to the child, L.C., in
January 2020 in Miami, Florida. Due to the COVID-19 pandemic and being a new
mother, the respondent did not begin working as a physician’s assistant until
January 2021, when she joined a psychiatrist’s office at which she provided
telemedicine services. At the end of that year, the parties sold some of their
furniture and moved with L.C. and the rest of their belongings to Medellin,
Colombia in December 2021. The parties lived together in Colombia until they
separated in August 2022. At first, they lived together and divided their time
between their mothers’ houses in El Carmen and Itagui while they worked on
building a house in El Carmen. El Carmen is located in a rural area roughly 80
miles outside of Medellin; Itagui is located near. By November 2022, the
parties each moved into their respective mothers’ houses, both located in
Itagui and roughly a five-minute drive apart. During this time, the parties
co-parented L.C., who stayed with the petitioner every other weekend and
visited with the petitioner during the week.
Due to privacy laws, the respondent was
unable to practice remotely as a physician’s assistant in the United States
while located in Colombia and became unemployed in April 2022. Respondent was
unable to find other employment because the position of physician’s assistant
does not exist in Colombia, and her master’s degree did not aid in her job
search outside of the United States.
Upon the parties’ separation, the respondent indicated to the petitioner
on multiple occasions that she wanted to move back to the United States, in
part to find work in her field. In February 2024, Delmoral filed a Verified
Complaint for Divorce (“Complaint”), signed by the petitioner, in New Jersey
state court and emailed service of the Complaint to the respondent on April 10,
2024. The Complaint lists residential addresses for the petitioner in New
Jersey and the respondent in New York and calls for the respondent to retain
full physical custody of L.C. The Complaint is not signed by respondent.
Respondent made the decision to move to the
United States in November 2023. Around November or December 2023, respondent
decided to move to Florida instead of New York and expressed to petitioner that
she would do so “depending” on her employment and “work/life balance.”. In late
2023 and early 2024, respondent prepared for the move. She sold her car to
petitioner, informed L.C.’s daycare that he would not return, and gave away
some of her belongings. Respondent purchased a one-way airplane ticket from Medellin
to Orlando, Florida. That same month, petitioner registered the child as a
Colombian citizen with the Office of Civil Registry in Colombia. Petitioner
then provided a written authorization, as required by Colombian law, for L.C.
to travel to the United States from January 26, 2024, to May 15, 2024, for
purposes of “tourism.” On January 26, 2024, respondent traveled from Colombia
to the United States with L.C. On arriving in the United States, respondent and
L.C. moved in with respondent’s cousin and her family in Kissimmee, Florida. In
March of that year, petitioner and his mother visited L.C. in Florida, and
petitioner again visited L.C. in Florida in April 2024. During each of these
trips, petitioner picked up L.C. and stayed with him without respondent. On
April 28, 2024, petitioner, with respondent’s consent, purchased tickets for
respondent and L.C. to travel from Orlando, Florida, to Medellin, Colombia on
May 16, 2024—the day after the travel authorization expired.
Respondent and L.C. continued to reside in
Florida until relocating on May 4, 2024, to the house of respondent’s mother
and stepfather in New York She then informed petitioner that she and L.C. would
stay in New York.. Two days after the move to New York, petitioner sent
respondent a text message stating, “You’re making unilateral decisions that you
wouldn’t like me to make.”. On May 14, 2024, respondent messaged petitioner
that L.C. would not travel to Colombia as previously scheduled. Respondent and
L.C. did not return to Colombia on May 16, 2024.
In New York, respondent and L.C. initially
resided with family in Fresh Meadows, until June 2024 when they relocated to
Queens. At that time, respondent did not disclose to petitioner the address
where she and L.C. were living in Queens because she feared that petitioner
would take L.C. to Colombia without her permission. Respondent also feared that
if L.C. traveled to Colombia, petitioner would refuse to provide a written
authorization for L.C. to return to the United States. In August 2024,
petitioner took L.C. on a trip to Florida, without respondent’s consent. In
text messages that followed, petitioner explained his travel plan; that his
intention was not to take L.C. to Colombia, including because he did not have
his passports; and that he was “afraid” respondent would not allow L.C. to
travel with him because she had “acted unilaterally.”
Petitioner filed this action against
respondent pursuant to the Convention on November 15, 2024, seeking the return
of L.C. to Colombia. The Court found that Colombia was the place of L.C.’s
habitual residence immediately prior to his wrongful retention in the United
States on May 16, 2024; petitioner was exercising his parental custody rights
under Colombian law at that time, and those rights were breached by the
wrongful retention; and petitioner’s limited consent to L.C.’s travel to the
United States was dependent on multiple conditions that were not satisfied.
Accordingly, L.C. was wrongfully retained in the United States on May 16, 2024,
in violation of the Convention and had to be returned to Colombia.
The Court found that L.C.’s habitual
residence at the time of the retention was Colombia. Prior to January 2024, the
parties intended to, and did, establish Colombia as L.C.’s habitual residence.
When respondent traveled with L.C. to the United States between January and May
2024, the parties did not have a shared and settled intent to change L.C.’s
habitual residence to Florida or New York. Nor did the record establish that
L.C. became acclimatized during his roughly four-month tenure in the United
States prior to the date of the alleged wrongful retention.
Between January and May 2024, L.C. resided
with respondent in Florida and, to a limited extent, New York. During that
time, L.C. did not experience acclimatization to such an extent that his
habitual residence changed from Colombia to the United States. L.C.’s time in
the United States prior to the alleged wrongful retention spanned only four
months during which he moved from Florida to New York. Cf. Papakosmas v. Papakosmas, 483 F.3d 617, 627 (9th Cir. 2007)
(finding no acclimatization where children’s life in Greece was in a “permanent
state of flux” including three different homes in four months). The majority of
L.C.’s family was still located in Colombia, petitioner and L.C.’s paternal
grandmother visited L.C. while in Florida, and L.C. retained health insurance
coverage in Colombia. See Sundberg v. Bailey, 293 F. Supp. 3d 548, 557 (W.D.N.C.
2017), aff’d, 765 F. App’x 910 (4th Cir. 2019)
(finding no acclimatization in part because child “maintained significant
contacts” and “regular contact with her father ... aunt and cousins” and
“continue[d] to be a patient in the Swedish healthcare system”). Although L.C.
attended daycare and engaged with family and friends in Florida, he did not do
so during his roughly two weeks in New York. And while respondent presented
evidence that L.C. was beginning to learn English during his time in Florida,
the record does not indicate that L.C. became proficient beyond “learning some
words in English.” Moreover, at this time L.C. had just turned four years old,
which suggests that he was too young to become attached to two new environments
in the span of a few weeks or months. See Monasky, 589 U.S. at 78; Sundberg, 293 F. Supp. 3d at 557
(finding four-year-old child “not of an age where [she is] strongly attached to
any particular school or social environment”). Accordingly, the Court found
that L.C.’s habitual residence did not change to the United States—whether in
Florida or New York—between January and May 2024.
Pursuant to Colombian law, petitioner had
custody rights over L.C. See Civ. Code Col., Arts. 253, 288. Moreover,
petitioner was exercising those custody rights at the time of retention on May
16, 2024, in part because he had recently (i) obtained Colombian citizenship
for L.C., Tr. 219:10–13; (ii) only authorized travel through May 15, see
PX7; (iii) and requested assistance from the parties’ counselor, Gomez, on May
15 after he learned that respondent would not return to Colombia with L.C. the
next day,
The Court found that respondent
has failed to establish the defenses of consent or acquiescence by a preponderance of the
evidence. Instead, the record indicated that petitioner conditionally consented
to L.C.’s relocation to the United States based on several conditions,
including that L.C. live in Florida and travel to Colombia in May 2024. Because
those conditions were not met, petitioner’s geographically and temporally
limited consent was no longer valid at the time of retention.
To support the defense of consent,
respondent primarily relied on the following evidence: her testimony that the
parties’ “understanding was that L.C. was going to live with [her] permanently
in the United States,”; petitioner’s voice message in which he stated that
“children belong to the mother,”; and her testimony that the “tourism”
designation on the travel authorization form was a formality and did not
accurately represent petitioner’s intent. Additionally, Dr. Cadena testified
that respondent did not express to him that her move to the United States was
subject to any conditions by petitioner, and respondent’s mother testified
that, based on her conversations with the respondent, she understood that
petitioner did not impose any conditions on respondent’s move to the United
States. This evidence supported, at best, that there may have been a
miscommunication between the parties. However, it did not constitute a
preponderant showing that petitioner provided unconditional consent for L.C.’s
permanent relocation.
The Court found that petitioner
established by a preponderance of the evidence that he placed two conditions on L.C.’s potential
relocation to the United States: (1) respondent and L.C. must live in Florida,
and (2) L.C. must travel to Colombia in May 2024. Accordingly, petitioner’s
consent was limited in time and geography.
As to the first condition, the parties
discussed that L.C. would be located in Florida, in part because it was
geographically near to Colombia. Most compelling, respondent herself told
petitioner in February 2024 via text message that she moved to Florida rather
than New York “for L.C. to live better and to be closer to Colombia” even
though she could “earn[ ] more money” in New York. As to the second condition,
petitioner’s travel authorization was sufficient. See Swett, 733 F. Supp. 3d at 277
(finding “notarized travel authorization” with return date “unambiguous[ ]” as
to petitioner’s permission for child’s removal “only until that date”).
Pursuant to petitioner’s rights under Colombian law, once L.C. became a
Colombian citizen in January 2024, respondent could not travel abroad with L.C.
unless she obtained written permission from petitioner. Petitioner admits that
he registered L.C. as a Colombian citizen without respondent’s consent, as he
believes it was his right to do. Respondent was upset by petitioner’s actions
and argues this is part of a broader pattern of petitioner’s bad faith as to
L.C.’s relocation. That petitioner registered L.C. as a Colombian citizen
without respondent’s consent may indicate distrust between the parties, but that
alone does not demonstrate that the subsequent travel authorization was
invalid. Indeed, by respondent’s account, petitioner took this step so that he
could require the respondent to obtain his permission to leave Colombia with
L.C. Petitioner did so to exercise control over L.C.’s residence and provided
that permission via a written authorization, allowing L.C. to travel to the
United States from January 26 to May 15, 2024, for purposes of “tourism.” PX7;
Tr. 100:18–101:3. This lends further support that petitioner did not give
blanket permission for L.C.’s move and, to the contrary, that he wanted to
ensure L.C.’s return to Colombia.
Further, whether petitioner’s designation
on the travel authorization that L.C.’s trip was for “tourism” accurately
reflected petitioner’s intent or represented a mere “formality” as respondent
testified, it was clear that the travel authorization did not indicate that he
consented to respondent’s retention of L.C. in the United States after May 16,
2024. See Garcia Moreno v. Martin, No. 08-cv-22432, 2008 WL 4716958,
at *11 (S.D. Fla. Oct. 23, 2008) (finding travel authorization that
included “nothing” about the child “permanently moving or relocating” did not
indicate petitioner consented to permanent removal to the U.S.). The parties
disputed the purpose of L.C.’s May 2024 trip to Colombia. Petitioner testified
that the purpose of the trip was to “evaluate L.C.’s adaptability in the U.S.,”
and to go on vacation, respondent testified the trip was solely for vacation.
While the Court found some inconsistency between petitioner’s testimony as to
the temporary nature of L.C.’s move to the United States and his later message
that the parties had agreed to a “vacation” in Colombia, these explanations were
not mutually exclusive. In either scenario, the condition was that L.C. would
travel to Colombia. Petitioner purchased airplane tickets for L.C. and
respondent to fly to Colombia on May 16, 2024, with respondent’s knowledge In
addition to the travel authorization, the parties’ co-parenting counselor,
Gomez, testified that a condition of the move to the United States was that
L.C. would travel to Colombia to “see” petitioner. Indeed, after respondent
informed petitioner that L.C. was not returning to Colombia as scheduled,
petitioner immediately reached out to Gomez for an emergency session. This
action demonstrated both that petitioner discussed this condition during the
parties’ prior sessions with Gomez and that L.C.’s trip to Colombia was a
material condition on petitioner’s consent. Petitioner’s swift and strong
reaction suggested that there was no doubt as to his intentions that L.C. was
required to travel to Colombia in May 2024.
Respondent did not fulfill those
conditions. Instead, on May 4, respondent traveled with L.C. to New York and
just two days later told petitioner that she planned to stay there with L.C.,
in violation of the first condition that L.C. reside in Florida. The testimony
from respondent, her mother, and Gomez that petitioner was aware of the
possibility that she may move to New York or Georgia does not support a finding
of consent to those locations. And even if respondent did not agree to
petitioner’s geographical condition, what is important under the Convention is
petitioner’s “subjective intent” in allowing L.C. to travel to the United
States. See In re Kim, 404 F. Supp. at 516. Further, respondent
testified that she refused to disclose her New York address to petitioner and
to bring L.C. to Colombia because she feared that petitioner would take L.C. to
Colombia without her permission or decline to provide further written authorization
for L.C. to return to the United States.
Respondent’s remaining evidence failed to
establish petitioner’s consent to L.C.’s indefinite and permanent relocation by
a preponderance of the evidence. Accordingly, respondent failed to establish
that petitioner consented to a permanent retention of L.C. in the United States
or that the conditions of petitioner’s limited consent were satisfied such that
the Convention does not require return of L.C. to Colombia.
