Case Update (30 April 2023): Watts-Farmer v. Cortes; affirming ne exeat as a right of custody; protective order that was ignored by parent presents a grave risk

Abduction

May 12

The parties are parents to a minor child who was retained by the Respondent Mother in New Jersey at the end of a December 2021 trip. After some procedural hiccups, the Petitioner Father filed and then served his amended petition to request the minor child's return to Colombia in or around August 7, 2022. The two key issues were whether the Father had a right of custody after a protective order, issued in Colombia, gave the Mother physical custody of the child, with no access to the Father, and whether the child would be exposed to a grave risk of harm if returned to Colombia.

The parties were subject to a "resolution," issued by the Family Commissioner in Colombia, in June 2020, that placed physical custody of the minor child with the Mother. There was a further resolution in November 2022 further ordering the Father to stay away from Respondent and to attend parenting and other classes. At the time of the child's removal from Colombia, the Colombian Code established that to remove a child from the country, the removing parent needed to obtain permission from the non-removing parent, short of that parent's parental authority being suspended or terminated. Therefore, at the time of the Mother's removal of the child, she was required to obtain the Father's authorization to exit Colombia with the child for her trip to the USA. The Father did consent to this trip, but for dates certain for departure and return. Thus, with the ne exeat in place under Colombian law, the Father had the right of custody envisioned by Abbott v. Abbott.

When the Mother first obtained the resolution (i.e., protective order), the Father was granted no access to the child, but, he still saw the child weekly up until the Mother traveled to the USA. She testified that the Father would "threaten her - monetarily (withholding financial support) and physically - to force compliance with this arrangement" (to see the child). The court concluded that the acts of violence that led to the Colombian resolutions "occurred in the presence of" the child, and that the ultimate refusal to adhere to the stay away provisions in the resolution led the court to conclude that it would expose the child to a grave risk if the child were returned to Colombia.

Therefore, the court denied the Father's request to return the child.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/