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Argument preview: Court to consider tolling (or not) in child custody dispute

Tomorrow at 10 a.m., the Court will wade into the arena of international family law for the third time in less than four years.  In Lozano v. Alvarez, the Court will once again interpret the Hague Convention on the Civil Aspects of International Child Abduction, a treaty that addresses international custody disputes.

The Convention specifies when a child must be returned to another parent.  It further provides that for one year after the child is taken, the return obligation is essentially automatic.  The Court will decide in Lozano whether that one-year period can be extended – for example, as in this case, when the abducted child’s whereabouts are unknown for part of that one-year period.

The estranged parents in this case, Diana Montoya Alvarez and Manuel Lozano, are both Colombian nationals who immigrated to England, where their daughter was born in 2005.  In 2008, Alvarez left their home with their daughter; the pair stayed in a shelter for victims of domestic violence for several months before traveling to France and then to New York, where Alvarez has family.  Once in New York, the pair lived with Alvarez’s sister, and Alvarez enrolled her daughter in school under her own name.  Although the lower court described Lozano as “remarkably diligent” in trying to locate his daughter, he did not confirm that she was in the United States until October 2010; shortly thereafter, he filed a petition in federal district court, seeking the child’s return to the United Kingdom.

Article 12 of the Convention creates a near-automatic return remedy:  if, within one year of the abduction, the parent of an abducted child files a petition seeking the child’s return, the courts in the country where the child is located must order that return unless one of a few narrow exceptions (which are not at issue in this case) applies.  The idea behind the return remedy is to deter abductions by ensuring that courts in the child’s home country, rather than the country to which the child is abducted, will make custody determinations, thereby reducing the incentives for one parent to try to gain an advantage by taking the child to a country where she believes she might be able to obtain a more favorable custody ruling.

Of course, as this case demonstrates, not all petitions for a child’s return are filed within a year of the abduction.  Article 12 also addresses this scenario, providing that if more than one year has elapsed since the child’s abduction, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”  Responding to Lozano’s petition for his daughter’s return, Alvarez conceded that the child had been wrongfully removed, but she countered that (among other things) the child should not be returned because more than a year had passed since the child’s departure from the U.K., and she had become “settled” in the U.S.

The lower courts agreed with Alvarez and declined to order the child’s return.  The Second Circuit spurned Lozano’s suggestion that the one-year deadline should be equitably tolled to account for the time in which he could not find his daughter.  First, it reasoned, the deadline was intended to allow courts to “consider a child’s interests in remaining in the country into which she has been abducted after a certain time has passed” – an intent that would be undermined if the deadline could be extended based on equitable principles.  Second, it held that the one-year deadline is not a statute of limitations and therefore not subject to tolling.  Lozano then filed a petition for certiorari, which the Court granted in June of this year.

For the most part, Alvarez and the federal government, which filed an amicus brief supporting her, make similar arguments, the strongest of which rest on the text and history of the Convention.  They contend that there is nothing in the text of Article 12 to suggest that the one-year period for the near-automatic return remedy can be extended.  To the contrary, they argue, if the Convention’s drafters had intended for the one-year period to start running from when the left-behind parent located the child, they could have expressly said so.  Moreover, they add, Article 12 is consistent with the Convention’s purpose of protecting the best interests of the child by allowing courts to take into account, after one year, whether the child’s ties to her new environment are sufficiently strong that she should not be returned.  In their view, the drafting history of the Convention also confirms that the one-year period was not intended to be subject to equitable tolling:  the delegates considered and rejected a proposal that would have created two different deadlines for the automatic return remedy, with a longer one for cases in which the abducting parent had concealed the child’s whereabouts.

The government parts ways with Alvarez on only one significant point.  It contends that, even if the one-year deadline has passed, the court is not required to determine whether the child is settled in her new home.  The U.S. reasons that, in some cases, the burden of making that inquiry might outweigh the benefits – for example, if abducting parent acted “egregious[ly]” or the left-behind parent just missed the one-year filing deadline.

Lozano relies on a different provision of the Convention, which he characterizes as making clear that a left-behind parent can rely on domestic law in his efforts to have a child returned.  In the United States, he reasons, there is a presumption – which should thus apply equally in this case — that statutes of limitations can be tolled.  And, in his view, the one-year period is a statute of limitations – indeed, even the United States described it as such as long ago as 1980, and as recently as 2006 – that “provides certainty about the opportunity” for the left-behind parent to prevail.  Lozano also evokes policy considerations in support of his position, warns that allowing courts to use their discretion in determining whether to order a child’s return after the one-year period has passed will reward abducting parents who can conceal their child’s whereabouts and lacks the predictability of equitable tolling.  By contrast, allowing equitable tolling will deter abductions by ensuring that the abducting parent cannot gain any advantages from his actions.  Lozano rejects the government’s interpretation of the Convention as allowing courts to decline to consider whether the child is “settled” even after the one-year period has passed as unsupported by the text.

Alvarez and the government in turn maintain that, contrary to Lozano’s assertion, Article 12 does not establish a statute of limitations.  A statute of limitations creates a deadline by which a claim must be filed, or else the claim will be lost forever.  Under the Convention, though, a parent can still file a petition for return even after the one-year period has passed; all that Article 12 does is to create an exception to the near-automatic return remedy.  On the other hand, even if a petition is filed during the one-year period, there is no guarantee that the child will be returned, as there are other exceptions to the automatic return remedy that could preclude the child’s return.

In each of the last two Hague Convention cases, the party with which the federal government is aligned has prevailed.   A similar result seems more likely than not here:  not only is the interpretation espoused by Alvarez and the government seemingly the more natural reading in light of the text and history of the Convention, but it is also more consistent with decisions by courts in other countries that are signatories to the Convention – none of whom, according to Alvarez and the government, have allowed equitable tolling of the one-year period.  And on a very human level, while the Justices no doubt do not want to reward bad behavior by an abducting parent who manages to conceal the child’s whereabouts, they may not want the solution to that problem to come at the expense of a child who is settled in her new environment.

Recommended Citation: Amy Howe, Argument preview: Court to consider tolling (or not) in child custody dispute, SCOTUSblog (Dec. 10, 2013, 4:58 PM),