In Garcia v Angarita, 440 F.Supp.2d 1364 (S.D. Florida, 2006) the father, a citizen of Colombia, petitioned for the return of his 3 children allegedly wrongfully relocated to the United States by their mother. The District Court held that under Colombian law the father had, and was exercising, rights of custody to children when they were allegedly removed and retained in the U.S.; the father did not consent to or acquiesce in the children's relocation; one child's objections to being returned to father's custody would not be taken into account by the District Court because the child was not of sufficient age and maturity and evidence that one child would suffer some psychological harm if returned to his father failed to establish a grave risk of harm.

The mother, Rosnaira Cecilia Fernandez Angarita, removed the children from their habitual residence in Colombia on or about July 25, 2005, and retained them in the United States. Respondent contended, inter alia, that Petitioner did not have custody rights under Colombian law, but only visitation rights, and therefore the removal of the children from Colombia was not wrongful. In early August, 2005, almost immediately after learning that Respondent intended to keep the children in Miami, Petitioner began trying to locate the children and to obtain the documentation necessary to make a formal request for their return under the Hague Convention. Petitioner filed a lawsuit in Bogota in September 2005 to obtain custody of his children. Petitioner filed his Hague Convention Application on November 12, 2005. He also pursued a lawsuit in Barranquilla to obtain a divorce from Respondent.

The Court found that Title XII of the Colombian Civil Code sets forth the rights and duties between parents and children. Article 253 provides, "Both parents ... shall exercise the parental care in the upbringing and education of their legitimate children".

Title XIV of the Colombian Civil Code sets forth the rights of "Patria Potestas." Article 288 provides that "Paternal authority is the set of rights that the law acknowledges to the parents over their non-emancipated children ..." It further provides that, "The exercise of the parental authority over their legitimate children shall be exercised jointly by both parents. In the absence of one of the parents, the other parent shall exercise the paternal authority." Article 338 of the Colombian Minors' Code provides that, "When a minor is going to go out of the country with one of the parents or with a person different from their legal representatives, they should previously obtain the permission of the parent or legal representative who is not traveling, authenticated before a notary or consular authority".

In 1994 the parties attended mediation through the Ministry of Social Protection to resolve a dispute regarding the Respondents desire to move to Bogata with the children. The mediator determined that provisional custody would remain with the wife and the parties were permitted to go to court to resolve the conflict. The wife’s expert testified that Respondent had the right to determine where, within Colombia, the children would reside. She testified that the Ministry of Social Protection, acting through the family mediator, had the authority to make provisional custody decisions until the Court renders a final decision. Only the Court, however, could remove the patria potestas rights. She acknowledged that the children would not be permitted to reside in another country unless both parents consented, or there was a Court order permitting the relocation. Moreover, she noted that the consent to international travel could be limited to a particular time, location or purpose. She also opined that an unlimited travel authorization such as the one executed in the case at bar would legally permit the children to leave the country permanently, even if the authorization were obtained by misrepresentations.

Based on the testimony of both experts, the court found that that under Colombian law both parents exercised the rights of patria potestas at the time of the children's removal to the United States. However, based upon the provisional custody decree, the mother had the right to determine where, within the country of Colombia, the children would reside, at least until the Colombian courts entered a final decree that stated otherwise. The father retained a ne exeat right, however, pursuant to the provisions of Article 338 of the Minor's Code. Therefore, the mother was not permitted to relocate the children outside of Colombia without the permission of the father.

The parties agreed that the habitual residence of the children prior to their travel to the United States on July 25, 2005 was Colombia, and that the issue of custody rights was governed by Colombian law.

Petitioner claimed that he had joint custody rights under the patria potestas provisions of Title XIV of the Colombian Civil Code, Article 288 and Title XII of the Colombian Civil Code, Article 253; as well as the ne exeat provisions of Article 338 of the Colombian Minors Code. The Court held that the case was governed by the decision of Eleventh Circuit Court of Appeals in Furnes v Furnes, 362 F3d 702 (11^th Cir), where in analyzing whether a parent has custodial rights under the Hague Convention, the court held that it is crucial to note that the violation of a single custody right suffices to make removal of a child wrongful. That is, a parent need not have "custody" of the child to be entitled to return of his child under the convention; rather, he need only have one right of custody. Further, he need not have a sole or even primary right of custody. The court noted that the Convention does not explicitly define the term "place of residence." In its view what country a child lives in, as opposed to what city or house within Norway, constitutes a right to determine a child's place of residence under Article 5 of the convention and thus a right of custody under the Convention. 362 F.3d at 714-15. In reaching this result, the Eleventh Circuit expressly rejected the decisions of the Second, Fourth and Ninth Circuit Courts of Appeal.

In addition, the court found that Petitioner retained his patria potestas rights, and that these rights, which provide for the joint exercise of parental authority, reinforced the determination that Petitioner has certain rights of custody. The court held that Petitioner was actually exercising his custody rights. At the outset, Respondent recognized that the children could not travel abroad without Petitioner's consent, and he gave his consent to international travel only for the limited purpose of a vacation with their Uncle Hugo. In addition, Petitioner saw and spoke to the children frequently, even after their move to Bogota; and, he paid support and arranged for their schooling in Bogota, as well as providing health insurance. "[T]he exercise of custody rights includes a parent's providing financial support and attempting to keep, or to seek, regular contact with a child.