Case Update (9 April 2026): Restrepo II; Child ordered returned to Colombia

The parties are the same litigants from a prior Hague Abduction Convention case, which resulted in the parties’ child being ordered returned to Colombia on March 28, 2025. Pursuant to that order, the parties’ child was returned to Colombia on April 18, 2025, accompanied by both parents from New York to Medellm. In the subsequent months, the parties engaged in various proceedings, including a conciliation proceeding, requests made to the Family Affairs Office, and requests filed with the Third Municipal Criminal Court in Itagrn. These various proceedings finalized their divorce, codified their custodial rights over the child, and addressed the Respondent Mother’s request to relocate the child to the United States. More specifically, as to the latter issue, the Petitioner Father did not agree to the child’s relocation, but the Respondent did not waive her right to request a court permit the relocation. The Respondent ultimately left Colombia for New York with the child on December 3, 2025. On December 12, 2025, the Respondent emailed Petitioner informing him that they were in the USA. The Petitioner filed a request to return the parties’ child pursuant to the Hague Abduction Convention in the US District Court for the EDNY. At trial, the Respondent’s primary arguments were that the USA was the child’s habitual residence in December 2025, not Colombia, and that she was granted full custody of the child during Colombian court proceedings, and therefore, could unilaterally move the child to the USA without abridging Petitioner’s rights (ergo, the Petitioner had no right of custody).

As to the child’s habitual residence, the EDNY “incorporate[d] by reference its prior habitual residence analysis” from Restrepo I. Respondent argued that the totality of the circumstances demands the Court place significant weight on the amount of time the child spent in New York between May 2024 and April 2025, before being ordered returned under Restrepo I. The EDNY was unpersuaded, and stated that “the Court is unable to find any [authority] - for the proposition that evidence of a child’s life after a wrongful removal or retention can be used to support a habitual residence determination.” Therefore, based on the totality of the circumstances, the child’s habitual residence was Colombia.

At trial, both parties presented Colombian legal experts to testify as to the content of Colombian law and the interpretation of the various Colombian orders, as to the Petitioner’s rights of custody. Petitioner’s expert testified that the orders in Colombia did not extinguish his patria postedad rights, and therefore he had the right to determine the child’s place of residence, and only a court order could change that. The Respondent’s expert testified to the opposite - that the Colombian orders granted her client full custody, including the right to relocate the child. The court cited to the parties’ Colombian divorce decree, which stated the child would continue living with mother in the Medellm metro area, and she was “being requested to inform the father of any change in the child’s residence.” The Petitioner relied on the former phrase, while the Respondent relied on the latter in their respective arguments. Further, the decree stated that it did not imply a waiver of the mother’s right to go before an administrative tribunal or court to request a residence permit for her son in another country. Citing to Colombian law on the interpretation of contracts, the EDNY concluded that the Divorce Decree required the child live in Colombia, and, since Colombian law says intent prevails over literal meaning of words, the EDNY agreed with the Petitioner’s interpretation, concluding that he had a right of custody over the child. The court also noted other things between the parties that would indicate the parties’ Divorce Decree never intended for Respondent to have the unilateral right to relocate the child, including the fact that two weeks after the decree, she commenced conciliation proceedings to seek an agreement that the child reside in the USA with her. Further, evidence suggested that the Petitioner did not consent to a relocation, and the Divorce Decree’s language was negotiated on that premise.

The EDNY ultimately granted the Petitioner’s request, and ordered the child returned to Colombia.