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Argument analysis: Justices unsatisfied with options in custody case

When Lauren Moskowitz, the attorney for Diana Montoya Alvarez, stood up this morning to argue on behalf of the respondent in the international family law dispute Lozano v. Alvarez, she had reason to feel optimistic:  at least seven Justices had expressed misgivings about the arguments just made for roughly thirty minutes by Shawn Regan, the lawyer for petitioner Manuel Lozano.  But any confidence that she may have felt was short-lived, as both Moskowitz and then Assistant to the Solicitor General Ann O’Connell (representing the United States, which filed an amicus brief in support of Alvarez) also faced a barrage of questions from all sides.  By the end, it was not at all clear how the Court might rule.  To their apparent consternation, several Justices appeared unconvinced that there was actually much difference between the two sides’ positions, but at the same time neither position seemed to fully satisfy the Justices.  (My preview of the oral argument is here.)

Regan began his argument for the petitioner by reiterating a strong policy argument in his favor:  allowing courts to extend the one-year period during which the Hague Convention on International Child Abduction provides a near-automatic return remedy in cases in which the abducting parent has concealed the child’s whereabouts will deter parents from abducting and concealing their children in the first place.  But several Justices – including Justices Ruth Bader Ginsburg, Samuel A. Alito, and Stephen Breyer – expressed concerns that, because Regan’s rule would require near-automatic return, it would preclude courts from considering the best interests of children who had spent enough time in their new location to form attachments there, effectively punishing the children for the sins of the abducting parent.  Regan tried to assuage those concerns by pointing to Article 13(b) of the Convention, which allows courts to deny a petition for return if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”  But that tactic only got Regan so far, with Justice Antonin Scalia telling him that, applying his rule to a routine case, the child would still almost certainly be returned.  Justice Kennedy chimed in, suggesting to Regan that, by introducing Article 13(b), he was “in a sense” saying that the automatic return remedy would not be very automatic, even with equitable tolling available.

The Justices were also clearly bothered by the prospect that a ruling in Lozano’s favor might put the United States at odds with other signatories to the Convention; Justice Breyer, for example, told Regan that “every other country is against you.”  And when Justice Elena Kagan picked up on this theme a few minutes later, asking Regan whether he contested Breyer’s point, Regan countered that the international decisions going against his client misunderstood the concept of equitable tolling.  That explanation prompted Justice Scalia to exclaim, “Who cares if they’re wrong?” The point is, Scalia contended, that the Convention should be interpreted uniformly.

In her time at the lectern, Moskowitz opened with her strong suit:  applying equitable tolling to extend the one-year period would be contrary to the text, purpose, and drafting history of the Convention.  But if, during the first twenty-five minutes or so of the argument, the Justices had been concerned about the child’s interests in not being removed from her new environment, they now turned to the point that Regan had made – that precluding equitable tolling would give abducting parents an incentive to abduct their children and conceal their whereabouts for at least a year.  This led to a moment of levity, with (native New Yorker) Justice Sonia Sotomayor pronouncing that, if an abducting parent wanted to elude detection, “all it takes is moving to Peoria.”   Chief Justice John Roberts then interjected that “those of us from the Midwest think it’s actually easier to hide in New York.”

Moskowitz sought to reassure the Justices that, even if an abducting parent successfully concealed the child’s location long enough that the child became settled, courts might still have some discretion to consider the concealment in ultimately determining whether to order the child’s return.  But that approach seemed to frustrate rather than placate some of the Justices, who regarded the interpretation as inconsistent with Moskowitz’s reliance on the text of the Convention.  Chief among these Justices was Justice Scalia, who then pressed Assistant to the Solicitor General Ann O’Connell to clarify the government’s position on the role of discretion even before she began her introductory remarks.  Although O’Connell emphasized that the courts’ discretion was not “free-wheeling,” Scalia complained that he didn’t see any difference between the two positions:  Lozano wanted to call his rule “equitable tolling,” while Alvarez and the government wanted courts to be able to take concealment into account, but both sides would essentially wind up in the same place.

During his rebuttal, Regan pushed back against Scalia’s characterization, emphasizing the significant differences between his rule and Alvarez’s.  But in the end, it was remarks by Justice Breyer during Regan’s rebuttal that may best summarize the dilemma before the Court, and how the Court might resolve it.  Breyer observed that on the one hand, the Court does not want to encourage abductions, which the rule espoused by Alvarez and the government might do.  But on the other hand, and perhaps even more importantly in the Court’s eyes, it does not want to turn the child into a yo-yo, uprooting her from her new environment to send her back to her original home so that courts there can make a custody determination – which may or may not result in the child returning to her “new” environment.  Breyer suggested that, if the one-year period cannot be equitably tolled and the child is deemed “settled” in her new environment, that would mean only that the courts in the new environment could hold a hearing on the merits of the custody dispute (during which, presumably, they could take the abducting parent’s behavior into account in determining what custody arrangement would be in the best interests of the child).  This approach may ultimately prove the more palatable of two unpalatable options, and it would have the added bonus of being more consistent with the practice of other Convention signatories.

A decision in the case is expected by summer.

Recommended Citation: Amy Howe, Argument analysis: Justices unsatisfied with options in custody case, SCOTUSblog (Dec. 11, 2013, 1:53 PM),