International Parental Child Abduction

Colombia


Disclaimer: The information below relating to the legal requirements of Colombia is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
General Information:  Colombia is in the process of transforming its criminal justice system into an accusatorial one, with oral trials, in a way that resembles the U.S. justice system.  For non-criminal matters, however, including divorce and custody cases, Colombia remains a civil law country.
    
Judicial proceedings in a civil law country generally differ from those in the United States, a common law country, in several significant ways.  For example, juries are not used.  Legal cases are heard and decided by a judge or panel of judges.  Evidence can be presented and arguments can be made in oral hearings, but such hearings tend to play a secondary role, supplementing extensive written submissions to the judge.  The judge normally can play a more active role in proceedings than is common in U.S. courts. A judge in a civil law country is free to seek evidence independently of what either side presents. 
 
In Colombia, family court judges handle divorce and custody cases. In cases involving the Hague Convention on the Civil Aspects of International Child Abduction, recent legislation by the Colombian Congress has placed jurisdiction with family courts as well. In more remote areas of the country where there are no family courts, Hague cases are to be heard by civil court circuit judges.  While Colombian courts can recognize or enforce U.S. custody orders, they generally refuse to do so.  In a Colombian court, Colombian law takes precedence over U.S. law. A Colombian court order granting custody to one parent will prevail over an order issued by a U.S. court.  
 
Custody/Rights of Visitation:  In Colombia, married parents share equal rights of custody to their minor children.  Under Colombian law, if a father acknowledges on a child’s birth certificate that he is the father, then he shares equal custody rights with the mother, even if the child was born out of wedlock.   A father who has acknowledged paternity may seek assistance from administrative or judicial authorities for a remedy if the mother interferes with his rights to custody or visitation. Custody cases are first assigned to family protection officers within the Colombian Institute of Family Welfare and then custody and/or visitation are determined before a family court judge. Family courts have heavy caseloads and cases involving a U.S. parent disputing custody with a Colombian parent take a long time to resolve.   The U.S. Embassy in Bogota notes that Colombian courts favor parents of Colombian nationality and that it is very rare for a court in Colombia to grant custody to a parent residing in the U.S. when there is a parent residing in Colombia. 
 
Criminal Aspects:  The crime of international parental abduction is covered in the Colombian Penal Code as simple kidnapping, with circumstances that can increase or reduce the punishment.   Colombia does not consider international parental kidnapping as an extraditable offense.
 
Colombian Citizenship:  The Colombian Constitution provides that a child born abroad to a Colombian mother or father acquires Colombian citizenship once the birth is registered in a consular office or the child later becomes domiciled in Colombia.  If a child is born in Colombia, he/she will obtain Colombian citizenship automatically as long as one parent is a Colombian national or one of the child’s parents has legal resident status in Colombia. 
 
Colombian Passports:  In contrast to U.S. requirements, a Colombian passport for a minor child can be obtained with only one parent’s consent.  However, Colombian authorities have rules that restrict the departure of Colombian children from the country when they are not in the company of both parents.  See our Country Specific Information on Colombia  http://cas2k3ftp01/travel/cis_pa_tw/cis/cis_1090.html for more details.
 
Preventing Issuance of a Colombian Passport:  If a parent wishes to prevent the issuance of a passport to their minor child, he or she must submit a request to the Ministerio de la Proteccion Social, Instituto Colombiano de Bienstar Familiar (ICBF).  If ICBF concurs with the parent’s request, it will notify the Colombian passport office to place a hold on issuance of a passport to the minor child.  The Colombian passport agency will then notify Colombian Embassies and Consulates of the hold.  Parents may only submit a request through ICBF, not through a Colombian Embassy or Consulate.  Further information can be found at www.bienestarfamiliar.gov.co.
 
The Hague Convention:  The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction.  The Hague Convention is an international treaty.  Its purpose is to discourage international parental abduction and to ensure that children who are abducted or wrongfully retained are returned to their country of habitual residence.  The Hague Convention does not govern who should get custody of a child, but only the jurisdiction where custody should be adjudicated. 
 
The Hague Convention took effect between the United States and Colombia on June 1, 1996.  Therefore, Hague Convention provisions for return apply only to children abducted or retained after that date.  Parents and legal guardians of children taken to Colombia prior to June 1, 1996 may still submit applications for access to the child under the Hague Convention.  All countries party to the Hague Convention have a Central Authority that is responsible for processing Hague applications.
 
1. Do I qualify to apply under the Hague Convention?
 
You may qualify to apply under the Hague Convention if:
  • Your abducted/retained child is currently under age 16;
  • Your child was habitually resident in the U.S. prior to the retention/abduction;
  • Your child was abducted to/retained in Colombia on or after June 1, 1996, when the Hague Convention took effect
  • You had and were actually exercising a “right of custody” at the time of the abduction/retention.  (You do not need to have a custody order to begin the application process).
2. Who is Colombia’s Central Authority?  What is their role? 

The Colombian Central Authority performs an administrative role in processing Hague applications.  The Central Authority is the Instituto Colombiano de Bienstar Familiar (ICBF), which is located within the Ministry of Social Protection.  The address is Sede Nacional Avenida 68 No 64-01, PBX 4377630, Bogota, DC, Colombia.  The international telephone number is 011-57-1-437-7630.  The Central Authority’s email address is churtado1@icbf.gov.co.

3. What is the role of the Office of Children’s Issues?
 
The Department of State’s Office of Children’s Issues (CI) is the Central Authority in the United States.  CI is the primary point of contact on international parental child abduction cases.  We are prepared to assist in coordination on all aspects of these cases.
 
The Office of Children’s Issues can:
  • Assist parents in filing a Hague Convention application with foreign authorities for access to/return of the child;
  • Provide the left-behind parent with information on the country to which the child was abducted, including the operation and implementation of the Hague Convention in Colombia, its legal system and family laws, and a list of attorneys there willing to accept American clients;
  • Provide a point of contact for the left-behind parent at a difficult time;
  • Monitor judicial or administrative proceedings overseas;
  • Assist parents in contacting local officials in foreign countries or contact foreign officials on the parent's behalf;
  • Provide information concerning the criminal aspects of the case, including the use of federal and state criminal warrants against an abducting parent, passport revocation, and extradition from a foreign country to effect return of a child to the U.S.[there’s no extradition from Colombia in these cases, so why mention it?]; and
  • Alert foreign authorities to any evidence of child abuse or neglect.

The Office of Children’s Issues cannot:

  • Intervene in private legal matters between the parents;
  • Enforce an American custody agreement overseas (U.S. custody decrees are not automatically enforceable outside of U.S. boundaries);
  • Force another country to decide a custody case or enforce its laws in a particular way;
  • Assist the left-behind parent in violating foreign laws or re-abducting the child to the United States;
  • Pay legal or other expenses;
    or
  • Act as a lawyer or represent parents in court.
4. What are my rights/responsibilities?  As a left-behind parent, your rights include the following contact from the Office of Children’s Issues:
  • Regular updates regarding the status of your child’s case;
  • Consultation regarding the intricacies of processing your child’s case;
  • Timely response to your calls and faxes;
    and
  • A realistic assessment of your chances for obtaining the return of your child.
  • Your responsibilities include:
  • Providing costs associated with your child’s case;
  • Retaining and maintaining contact with your lawyer(s);
  • Keeping the Office of Children’s Issues apprised of developments in your child’s case;
  • Providing requested information in a timely manner;
    and
  • Providing document translations when necessary.
5. What documents must I submit along with the Hague application?  Should they be in a specific sequence?  Do I need to get them translated?
 
Instructions: To apply for the return of a child from Colombia under the Hague Convention, you must submit the following:
 
A) An application form:  The U.S. Central Authority application form may be downloaded at www.travel.state.gov/childabduction. 
 
B) Originals or a certified copy of the child’s birth certificate (s), your marriage certificate and your divorce decree, as appropriate.
 
C) Evidence of a custodial right:  A certified copy of the court custody order that          
was in effect when your child was removed to/wrongfully retained in Colombia, or a copy of the state law that establishes your right to custody and any agreements regarding custody or access.  Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order exists, and your state’s laws are silent as to a parent’s right of custody, an affidavit of law from a U.S. lawyer may be acceptable.
 
D) Photos of the child and of the taking parent.
 
E) Translations into Spanish for all English-language documents, including the application. 
 
Please remember:
  • The U.S. Central Authority does not charge any fees to process your application.
  • All documents should be typed or very clearly printed in black or blue ink. 
  • Fill out the Hague application as completely as possible with the information you possess. The physical descriptions of the taking parent and child (Parts I and III) are especially important, and should be completed regardless of the existence of accompanying photos. While passport numbers and social security numbers are very helpful, they are not essential.
  • If you are concerned that the taking parent will flee or go into hiding with the child when notified of Hague proceedings, it is essential that you note this and state the reason for your concern in Section VIII or on a separate page. It is helpful to the case officer if you repeat your concern in a cover letter or note attached to the front of the application package.
The completed Hague application package should be submitted to:
By regular mail, courier (FedEx, DHL, Express Mail, etc.)
The United States Central Authority
Office of Children’s Issues (CA/OCS/CI)
U.S. Department of State
SA-29, 4th Floor
2201 C Street, NW
Washington, D.C. 20520-2818
 
6. How does an application for access to/visitation with a child differ under the Hague Convention than an application for return of the child?  Does the LBP [this isn’t defined yet] have to have preexisting access rights in the form of a visitation order to be able to seek assistance under the Hague Convention in the country?
 
A parent who pursues access to their child in Colombia under the Hague Convention does not need preexisting access rights in the form of a visitation order to be able to seek assistance.   An application for access is a request that the Central Authority aid the applicant in initiating proceedings to determine and/or enforce visitation rights. Access is determined by applying the relevant Colombian domestic law. Unlike return proceedings, there are no provisions within the Hague Convention that guide courts hearing access cases on what factors they are to apply in order to make a determination in the case. 
 
7. What is the initial case processing of applications like?
 
The Colombian Central Authority, the Instituto Colombiano de Bienstar Familiar (ICBF) receives and reviews the Hague application package to make sure it is complete.   The Central Authority will then contact INTERPOL for assistance in locating the taking parent and child, if needed.   Once the child’s location is confirmed, the application will be forwarded to the Regional ICBF office, where the case will be assigned to a family defender. The family defender will schedule a home study with the child to ascertain his/her welfare and schedule a conciliation hearing. The presence of both parents and/or their legal representatives is requested at the conciliation hearing, at which time authorities will attempt to mediate a voluntary agreement.  If a voluntary agreement is not reached, the administrative phase is closed and the case is submitted to the Family Court for a ruling.    
 
8. How is the Hague return decision made?
 
The Instituto Colombiano de Bienstar Familiar (ICBF), in the Ministry of Social Protection, was designated as the Colombian Central Authority for Hague cases.  Legislation signed by President Uribe in January 2006 granted family courts jurisdiction over Hague Convention cases. In those areas of the country where there are no family courts, civil courts will adjudicate Hague Convention cases. The family court or civil courts are to apply the provisions contained in the Hague Convention to determine whether the return of the child must be ordered.
 
9. How long will the process take for return or access cases?
 
Hague Convention cases in Colombia consistently face significant delays.  These delays are due to the heavy caseloads of both ICBF and the courts, a lack of judicial training, and, until recently, debate over which courts were to hear Hague cases. (Legislation that came into effect in January 2006 has now clarified the correct court for Hague Convention cases.)  It is hoped that there will be fewer delays as a result. Please reference the Department of State’s most recent Hague Compliance Report to Congress for additional information on the difficulties Hague cases face in Colombia. 
 
10. Do I need a lawyer?  How do I find a lawyer in Colombia?  Can I get pro bono legal assistance?
 
You do not need to hire a private attorney to have your case processed. While the Colombian Central Authority will not assign an attorney to take charge of the case, they will prepare the documents needed to submit the case to the judge. 
It is recommended, however, that you hire a private attorney to follow up on the case and to provide direct information to the court.  If you hire an attorney, he/she should contact the Colombian Central Authority as soon as possible after the application has been submitted.  Hiring a private attorney may speed the process, although all cases still experience long delays.  Please see the website of the U.S. Embassy in Bogota for a list of attorneys in Colombia, at http://bogota.usembassy.gov/wwwsattc.shtml.
 
11. What costs will I incur?
 
There are no fees for filing Hague applications with either the U.S. or Colombian Central Authorities.  Attorney fees are the responsibility of the applicant.  
 

PASSPORT APPLICATIONS FOR MINORS: A person applying for a U.S. passport for a child under 16 must demonstrate that both parents or legal guardians consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.

CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM: Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also know as Children's Passport Issuance Alert Program (CPIAP). A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian, or the court of competent jurisdiction must submit a written request for entry of a child's name into CPIAP to the Office of Children's Issues. The CPIAP also effectuates denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport that has already been issued. If there is a possibility that your child has another nationality, you may want to contact the appropriate foreign embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports.

MORE INFORMATION: The State Department has general information about hiring a foreign attorney, service of process, and enforcement of child support and the international enforcement of judgments, which supplement the country-specific information provided in this flyer. In addition, the State Department publishes Country Specific Information (CSI) for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Travel Alerts or Travel Warnings that may recommend U.S. citizens defer travel to that country.  These documents are available on www.travel.state.gov .