In Arboleda v. Arenas, 311 F.Supp.2d 336 (E. D. N. Y., 2004), the father filed a petition pursuant to the Hague Convention and the International Child Abduction Remedies Act seeking an order requiring that his three minor children be returned to Colombia for ultimate determination of custody dispute.
 

The District Court held that petitioner failed to establish that the father's retention of children in the United States was wrongful, and even if petitioner established that the children were wrongfully retained in the United States, the mother established by a preponderance of the evidence that the children were well-settled in the United States.  Diaz and Gil were married in January, 1989. The couple lived in various parts of Medellin with their children, who were born in 1989, 1991, and 1994. The children attended school in Medellin, spent time with their extended family in Colombia, and led normal lives in that country.
 

In May, 2000, the family came to New York City. Notwithstanding the fact that the family traveled on a tourist visa, the purpose of this trip, a purpose shared by both Diaz and Gil, was to settle in the New York area and make a new life in the United States.
 

The family resided in the New York area for a few months, until about the
end of August, 2000. At that time Diaz and the children returned to the Medellin area, with Gil's permission, while Gil remained in New York. He needed facial/dental surgery, and could obtain such surgery only in Colombia, rather than the United States. Diaz and Gil decided the children should go to Colombia with Diaz was because the family had been unable to obtain an apartment in New York City in which they could all live. The couple decided that Gil would remain in New York City so that she could work, send money back to Colombia to support the family while Diaz was recovering from his surgeries, and look for an apartment where the family could live together once Diaz healed and he and the children returned to New York.
Diaz returned to New York in August of 2001 with the intent that his family would settle there, as he and Gil had originally intended when they first came to the United States in August of 2000.

By September of 2001, the whole family was living in Deer Park, Long Island,
and the children attended school there. Both parents were working outside the home. Within a short time after the family moved to Deer Park, Diaz and Gil became estranged, and Diaz moved out of the marital residence. Diaz continued,
however, to communicate with Gil and to take the children out on the weekends.
Diaz also made financial contributions toward the children's support. On
December 29, 2001, Diaz picked up all of the children under the pretense that
he was going to have a normal visit with them, as he had done before.
Instead, with virtually no advance notice to the children themselves, in the early morning hours of December 30, 2001 Diaz told Gil on the phone that he was returning to Colombia with the children, after Valentina managed to call her mother from a pay phone. Diaz then took the children to JFK Airport and attempted to fly with them back to Colombia. Since Diaz returned to Colombia, the Diaz children have lived with Gil. The court held that the children cannot be deemed wrongfully retained in the United States if the United States, rather than Colombia, is the country where they were habitually resident at the time of the alleged wrongful retention--in this case, December 30, 2001. The Second Circuit has not yet defined a standard by which this court should determine whether these children were habitually resident in Colombia or the United States at that time, but a well-reasoned and often-cited case on the subject is Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001) which the Court applied.
 

The court found as a matter of law, in these circumstances the more than three
months the children spent in the United States in 2000, combined with the five months they spent here in 2001, were sufficient to establish that in December of 2001 the children's habitual residence was in the United States. The children's stay in Colombia for about a year in between did not change this analysis, because during this interim period it was always the intent of both parents that the children eventually return to the United States. The parents had no "settled intent" that the children reside in Colombia, because during this period they often stayed with an aunt while their father was undergoing a series of surgeries, and it was never intended by the parents that the children would permanently stay with another relative. Diaz did not meet his burden of proving that Gil's retention of the children in the United States in December of 2001 was wrongful, and his petition was be dismissed.