Case Update (20 July 2026): Tamayo v. Trillos; importance of meeting evidentiary burden, and concerns over no one residing in habitual residence

Petitioner, a resident of New Jersey, seeks the return of a minor child from Kentucky to Colombia. The Petitioner is presumptively the child’s Father, after having undergone proceedings in Colombia to establish paternity. After the Respondent Mother failed to appear for DNA testing with the child, the Colombian court established a presumption of Petitioner’s paternity, and granted joint parental authority to Petitioner and Respondent, with the child’s primary residence with Respondent. This Colombian order was dated December 16, 2024. By this date, more specifically in May 2024, the Respondent left Colombia with the child and settled in the USA, where the child began living with Respondent and her Husband. It was October 2024 when the Petitioner learned that the child was no longer in Colombia. In July 2025, the Petitioner filed a custody suit in Kentucky. In November 2025, he filed this request to return the child to Colombia under the Hague Abduction Convention.

Respondent’s first argument was that the Petitioner failed to provide a properly authenticated copy of the Colombian court’s order pursuant to the Federal Rules of Evidence and Rules of Procedure. The District Court, however, noted that Article 14 of the Convention and ICARA allow a court to take judicial notice of foreign judicial documents without requiring authentication. As to the child’s habitual residence, the court concluded, without referencing Monasky, and seemingly relying on an old Sixth Circuit standard, that the child’s habitual residence was Colombia (it’s not clear that a proper Monasky-analysis would yield any different result).

The bigger issue was whether Petitioner had a right of custody over the child as of May 2024, when a Colombian court had not yet established his paternity. The court first looked at whether the pending paternity suit in Colombia, coupled with Colombian law, gave the Father or the courts in Colombian rights of custody. In that the Petitioner, here, did not provide evidence of Colombian law, the court could not conclude that Colombian law, on its face, granted the Father or courts any rights. The court also looked at Father’s argument that there existed an “orange alert” - a court order by the Colombian court that the child was prohibited from leaving Colombia pending completion of the DNA test. The court here, however, noted that the Father failed to provide sufficient evidence that the orange alert existed, or remained in effect at the time of the child’s departure from Colombia. Father produced a purported letter from “Migracion Colombia” from June 2025 that says the country exit ban remained in effect, but he translated the document himself, no original copy was provided, no testimony as to its authenticity, and the Petitioner did not mention this document in his petition or his post-hearing brief. The court therefore doubted the letter’s legitimacy and translation. In terms of whether the paternity order of December 2024 granted the Father a right of custody as of May 2024 - the Father also provided no citation to Colombian law that would confirm this. There was nothing on the face of the order that made the ruling retroactive. The Mother also argued that even if paternity was established retroactively, it did not necessarily grant a right of custody under Colombian law.

The Father also argued that the child was brought to the United States in May/June 2024, but only wrongfully retained as of December 2024, when the Colombian court issued its order. The court here, however, was not persuaded, stating that by that date, the child had already been living in the USA for more than 6 consecutive months. This seemingly implied, to the court, that if the date of retention were December 2024, the child’s habitual residence, as of that date, would be the USA.

The court dismissed the Mother’s argument that the Father’s filing of a Kentucky custody suit was acquiescence to the child’s relocation (or, as she argued, his acceptance that a U.S. court should determine custodial situations). The court also did not bite on Petitioner’s argument that his application with a Central Authority commenced proceedings. In that regard, he delayed filing his petition in this court beyond one year after the May 2024 removal of the child from Colombia. With the child having resided for 2 years as a permanent resident in Kentucky, and looking at the child’s present circumstances, the court found the child to be “now” settled.

Overall, the court kept referencing the Father’s residence in New Jersey, and framed him as not a “left behind” parent. In fact, when analyzing the Mother’s grave risk argument, however stating that it did not need to reach the merits of this argument, the court did note “[t]he Court certainly believes it would constitute an ‘intolerable situation’ to send a young child to a country where she has no parent to receive her.'“