Can a district court considering a petition under the Hague Convention for the return of an abducted child to the child’s home country toll the running of the one-year filing deadline when the abducting parent has concealed the whereabouts of the child from the other parent?
In July 2009, Diana Lucia Montoya Alvarez and her daughter fled the United Kingdom for the United States without the knowledge or consent of Manuel Jose Lozano, the child’s father. In August 2010, Manuel Jose Lozano discovered that the child was in New York and filed a petition in U.S. federal district court under the Hague Convention on the Civil Aspects of International Child Abduction, for the return of his daughter to England for a custody determination. The United States Supreme Court must decide if equitable tolling is applicable to the one-year period where the petitioner has searched for the child but only found her after the deadline had passed. The Court’s ruling will implicate the rights of the abducted child and the left-behind parent.
Questions as Framed for the Court by the Parties
The primary purpose of The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or the "Convention") is to protect children from international abduction by returning an abducted child to the nation of habitual residence for adjudication of custody rights under that nation's laws. To further that purpose, Article 12 of the Convention mandates that an abducted child must be returned if the left-behind parent's petition for the child's return is filed within one year of the abduction. In doing so, the Convention deters international child abductions by removing the benefit an abducting parent would otherwise obtain or perceive under the laws of the nation to which he or she has abducted the child. If the left-behind parent is unable, or otherwise fails, to determine the situs of the child and meet this one-year filing deadline, the court must still order the return of the child unless the abducting parent demonstrates one of four affirmative defenses, including that the child is "settled" in her new environment.
The circuit courts of appeal are split over whether equitable tolling may apply to the one-year period. While the Fifth, Ninth, and Eleventh Circuits all hold the one-year period may be equitably tolled, the Second Circuit held in this case that the one-year period is not subject to equitable tolling and the settled defense is still available even where, as here, the abducting parent conceals the location of the child. The Second Circuit also held the fact that the child and abducting parent lack legal immigration status is not dispositive on the issue of whether a child is settled under Article 12, but, rather, is merely one of several factors to consider. The questions presented are:
- Whether a district court considering a petition under the Hague Convention for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent.
- Whether an abducted child can be "settled" in the United States, within the meaning of Article 12, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status.
Note: The Court granted certiorari to Question 1 presented by the petition.
Diana Alvarez (“Alvarez”) and Manuel Lozano (“Lozano”) met in London in 2004 and began dating. Although they never married, the couple had a child in October 2005. Alvarez and Lozano have differing accounts of their relationship. Lozano claims that the couple had “normal couple problems,” but were otherwise generally “happy together.” On the other hand, Alvarez claims that Lozano treated her poorly and acted violently toward her.
On November 19, 2008, Alvarez left the couple’s apartment to take the child to the nursery, but she never returned. Alvarez and the child resided in a woman’s shelter for seven months before leaving the United Kingdom, and eventually settled in New York with her sister’s family. Alvarez and the child have since resided there. In the United States, the child has attended school and shown progress socially and academically. The child and Alvarez have also received therapy from a psychiatrist. Although the psychiatrist initially diagnosed the child with post-traumatic stress disorder, the therapist later agreed with Alvarez that the child’s behavior had vastly improved since arriving in New York. When the therapist asked the child if she wanted to see her father, the child responded “no.”
Unaware of the child’s location, Lozano attempted to find the child by contacting Alvarez’s sister and filing an application with a British court to submit orders seeking information on the child’s whereabouts. After exhausting these avenues, Lozano filed a Central Authority for England and Wales Application Form on March 15, 2010, seeking to have the child returned to the United Kingdom.
On November 10, 2010, Lozano filed a petition in the United States District Court for the Southern District of New York under Article 2 of the Hague Convention and International Abduction Remedies Act, requesting that the child be returned to London and that a British Court make a custody determination. The district court held that Lozano made a prima facie case for wrongful retention. Accordingly, the court determined that the child must be returned to the United Kingdom unless Alvarez could establish an affirmative defense.
Alvarez argued that her daughter should remain in the United States because she was “now settled” in her new environment. However, Lozano claimed that under Article 12 of the Convention, Alvarez could not raise this defense, which is not available until a year after “the date of the wrongful removal.” Lozano argued that here, the one-year period should have been tolled until the moment he reasonably could have had knowledge of the child’s whereabouts. The district court disagreed, arguing that it was in the child’s best interest to stay in the United States. In not applying equitable tolling, the district court reasoned that “the one-year period is not a statute of limitations and, therefore it is not subject to equitable tolling.” The court also determined that after a year, a court must consider whether the child would be better served by remaining in their current location. The Court of Appeals for the Second Circuit affirmed and agreed that the one-year period set out in Article 12 is not subject to equitable tolling. The Supreme Court granted certiorari on the question of equitable tolling.
In this case, the Supreme Court will determine whether a federal court can equitably toll the Hague Convention’s one-year filing requirement for parents searching for their abducted child. Lozano argues that the court should apply equitable tolling to the one-year period because, by not “running the clock” when a child’s location is unknown, equitable tolling would deter deliberate and wrongful concealment of children. Others claim that the Hague Convention emphasizes a child’s best interests, and that the courts of a child’s “habitual residence” should make the substantive decisions about a child’s long term welfare. The Court’s interpretation of the one-year requirement will potentially advantage certain parents in international custody battles; moreover, the Court’s decision implicates the role of the federal courts in resolving such battles.
BALANCING THE INTERESTS OF THE ABDUCTED CHILD AND THE LEFT-BEHIND PARENT
Lozano and supporting amici curiae argue that equitable tolling should apply to the Hague Convention’s one-year filing requirement because an abducting parent often deliberately conceals the child’s whereabouts. In these cases, the National Center for Missing and Exploited Children (“NCMEC”) argues, through no fault of the left-behind parent, he or she is unable to locate the child before the one-year period expires. According to NCMEC, tolling allows the court to flexibly respond to the complex search process the left-behind parent must face, including language barriers, financial constraints, and lack of knowledge and familiarity with foreign court systems. Furthermore, amici contend that child abductions are a form of child abuse, because a child who has been suddenly removed from the left-behind parent possibly experiences a loss of community, a loss of a sense of security and stability, and may develop a fear of abandonment.
On the other hand, Reunite International Child Abduction Centre (“Reunite”) argues that the 1980 Hague convention focuses on the best interests of the child, not on those of the adult parent. Accordingly, Reunite argues, once a child hasspent an extended period of time in a new social environment, the benefit of the child remaining there may outweigh the benefit of returning the child to the left-behind parent. Moreover, Reunite claims, if courts apply equitable tolling, then children will face the prospect of being removed from an environment where they have become settled, putting the child’s interests behind those of the abducting parent.
DETERRING WRONGFUL CONCEALMENT
Lozano’s supporters argue that affirming the Second Circuit’s decision would create the perverse incentive of encouraging parents to take their kidnapped children to the United States and concealing their whereabouts for as long as possible in order to prevent the timely filing of a Hague petition. A Child Is Missing, a non-profit organization that locates missing children, further warns that affirming the lower court would provide a clear rule for potential child abductors, allowing more child abductors to come to the United States, and further victimizing abducted children. According to Reunite, equitable tolling would increase the deterrent value of the Convention because parents would know that they could not benefit from the one-year rule by deliberately concealing the whereabouts of their children. In other words, amici argue, as long as the period of concealment is tolled, the purpose of the Convention is preserved and the abducting parent does not benefit from their wrongful conduct.
The Domestic Violence Legal Empowerment & Appeals Project (“Appeals Project”) and others in support of Alvarez argue that not all types of concealment are the same. The Appeals Project asserts that concealment can often be essential and lifesaving for domestic violence victims because most abusive men tend to continue to search for and re-abuse their victims. Accordingly, the Appeals Project argues, equitable tolling would effectively require domestic violence victims to disclose their locations to abusers, putting themselves and their children at risk of continued abuse.
The Court will determine whether a federal district court may equitably toll the one-year filing requirement in Article 12 of the Hague Convention on the Aspects of International Child Abduction (“the Convention”) during the period when the child’s location is unknown to the left-behind parent. Lozano argues that the one-year period is a statute of limitations that is subject to equitable tolling in cases like this, where the left-behind parent has searched diligently for the child but has still missed the one-year deadline. Alvarez counters that this provision should not be subject to equitable tolling because it lacks a necessary requirement to be considered a statute of limitations; namely, that Article 12 does not bar a parent from filing a petition to have their child returned.
IS THE ONE-YEAR PERIOD A STATUTE OF LIMITATIONS?
Lozano argues that Article 12 should be equitably tolled for the period of concealment because it is a statute of limitations. The Court has held that statutes of limitations are usually subject to equitable tolling unless the law is inconsistent with the text of the statute. Lozano argues that while objecting to the short period of return in the preliminary draft of the Convention, the United States clearly denominated the period as a statute of limitation.
Lozano argues that more recently, in a special convention to review the operation of the Convention, the United States again recognized the one-year period as a statute of limitations and stated and that it supported equitable tolling in every statute of limitations, unless Congress says otherwise. Lozano analogizes this one-year period with the Bankruptcy Code’s three-year lookback period, because they both prescribe a period of time that allow for enforcement of certain rights. Lozano points out that the one-year period prescribes a period of time in which the left-behind parent can have automatic return of the child. Lozano argues that the fact that the one-year period does not bar completely the return of the child does not prevent the period from being any less of a statute of limitations subject to equitable tolling. Lozano concludes that even if the court finds that the one-year period is not a statute of limitations, equitable tolling principles should be applied to the court’s discretion.
Alvarez responds that a statute of limitations bars a plaintiff from enforcing a claim. According to Alvarez, Article 12’s one-year period does not prevent a left-behind parent from filing a petition of return or having the child returned, and thus the one-year period is not a statute of limitations. Alvarez asserts that because the one-year requirement is not a statute of limitations, it cannot be subject to the doctrine of equitable tolling. Alvarez contends that equitable tolling is meant to balance a defendant’s right to repose and a plaintiff’s right to pursue claims if extraordinary circumstances make them inequitable. Alvarez argues that in this one-year period the court is simply required to consider whether the child is settled in the new country, and even if the court finds this condition is satisfied, it can still declare that the child be returned.
Alvarez further argues that there is no right to automatic return of a child that would be barred by the one-year period, because there are defenses that permit a child to remain in her new country. Additionally, Alvarez contends that Lozano’s analogy to the lookback period in the Bankruptcy Code is misplaced because after the three-year lookback period the IRS completely loses their remedies, whereas here the child may still be ordered returned unless a court finds that the child is settled.
IS EQUITABLE TOLLING CONSISTENT WITH THE CONVENTION?
Lozano believes that the Convention’s drafting history suggests that courts can apply the common law doctrine of equitable tolling to the one-year time period. Lozano argues that Article 34 of the Convention calls for the application of domestic law and legal rules to expand the application for a speedy return. Thus, Lozano states, other countries have expanded the return remedy using their own legal doctrines. Furthermore, Lozano contends that the drafting history of the Convention shows that the United States objected to the short statute of limitations in the Preliminary Draft. In Lozano’s view, the main purposes of the Convention are to ensure the safe return of the child and prevent further abductions. Accordingly, Lozano argues that the Convention’s purposes are not furthered if an abducting parent can conceal the child’s whereabouts from the left-behind period for more than a year using only a valid method, instead of extreme concealment.
Lozano claims that other factors support the availability of equitable tolling where the left-behind parent has searched for the child. For instance, Lozano believes that the United States’ implementation of the Convention—namely the lack of a record of who has entered the country—increases the hurdles for the left-behind parent and therefore justifies equitable tolling. Furthermore, Lozano claims he was “remarkably diligent” in searching for his child, but was induced by Alvarez’s misconduct to believe that the child was still in England long after they had left. Lozano also argues that before this case, the State Department supported equitable tolling of this statute of limitations. Therefore, Lozanocontends, courts should not reward an abducting parent who concealed their child’s whereabouts when the left-behind parent can show that they pursued their rights diligently, but an extraordinary circumstance stood in their way.
Alvarez responds that the explicit text of the Convention prohibits equitable tolling of the one-year period, because the Convention states that the clock starts to run when the child is wrongfully removed. Additionally, Alvarez argues that Lozano has other legal remedies available through Articles 18 and 34, which are meant to be applied separately from the Convention. Moreover, Alvarez contends that Lozano’s position—that equitable tolling should be available because of the difficulty of filing a petition—would contravene Congress’s policy choices in implementing the Convention. Alvarez argues that the Convention was meant to protect the best interests of the child and that ignoring the possibility that a child has settled into a new environment would undermine this purpose.
Alvarez further contends that the negotiating history of the Convention and the final implementation of Article 12’s one-year requirement indicate that equitable tolling is not available. According to Alvarez, the Convention is clear that the “settled” question is just another factor for the court to consider; however, Alvarez emphasizes, the court retains the ability to return the child at any time. Alvarez also notes that the State Department has agreed, in two amicus briefs, that equitable tolling should not be applied to the one-year statute. At the same time, Alvarez notes, other signatory countries, such as the United Kingdom, New Zealand, Canada, and Hong Kong have similarly rejected equitable tolling. Lastly, Alvarez contends that even if equitable tolling is available under Article 12, it should not be used in the facts of this case. Alvarez argues that she did not use extreme measures to conceal her child because (1) she did not move once she arrived at her sister’s apartment in New York, (2) Lozano had her sister’s address and telephone number in New York, and (3) she had told Lozano that she wanted to move the child to New York.
Here, the Court must decide whether a federal court may apply equitable tolling to the one-year filing requirement in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, where a left-behind parent has searched diligently for their child but could not locate the child until after the one-year period expired. The Court will determine whether the one-year period is a statute of limitations, and, if so, whether the Convention allows for equitable tolling. The Court’s interpretation of the one-year requirement will potentially advantage certain parents in international custody battles; moreover, the Court’s decision implicates the role of the federal courts in resolving such battles.
- Marshall Zolla, California Family Law Monthly, Lozano v. Alvarez (Nov. 2012)
- Gabriella Khorasanee, FindLaw, Lozano v. Alvarez: Custody Dispute Raises Issues of 1st Impression (Oct. 9, 2013)