Lozano v. Alvarez
On December 11, 2013, the United States Supreme Court held oral arguments in Lozano v. Alvarez.
The facts of the case are as follows:
“Diana Alvarez and Manuel Lozano, two native Columbians, met while living in London and had a daughter together. At trial Alvarez testified that, from 2005 until 2008, Lozano was abusing and threatening to rape her. Lozano denied these allegations and claimed that, although they had normal couple problems, they were generally “very happy together.” In November 2008, Alvarez took the child and, after a stay at a women’s shelter, moved to her sister’s home in New York. A psychiatrist diagnosed the child with post-traumatic stress disorder (PTSD) caused by her experience living in the United Kingdom, moving to America, staying at a women’s shelter, and knowing that her mother had been threatened. However, six months later, the child’s condition drastically improved.
After Lozano exhausted all remedies within the UK to attempt to locate the child, on November 10, 2010, he filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act in U.S. district court. The district court held that the child was now settled in New York and that removing the child would cause undue harm. The U.S. Court of Appeals for the Second Circuit affirmed.” LOZANO v. ALVAREZ, The Oyez Project at IIT Chicago-Kent College of Law,http://www.oyez.org/cases/2010-2019/2013/2013_12_820 (last visited December 21, 2016).
The question before the Supreme Court was whether the one-year statute of limitations to petition for the return of an abducted child under the Hague Convention applies when the abducting parent deliberately hides the location of the child from the other parent.
Article 12 of the Hague Convention provides that if the parent of an abducted child petitions to the return of the child within one year of the abduction, the courts of the country where the child was abducted to must order the child returned to the country of origin. There are only a few, narrow exceptions where the courts of the new country are not required to order the child returned, and none of those exceptions applied to this case. If the petition for return is not filed within one year of the abduction, the courts of the new country “shall order the return of the child, unless it is demonstrated that the child is now settled in [his or her] new environment”
The attorney for the father argued public policy: because the Hague Convention provides for an almost automatic return of an abducted child to the country from which he or she was abducted, allowing courts to toll the one-year period to petition for the return of the child in cases where the abducting parent concealed the child’s location would deter parents from abducting and subsequently concealing the child. Several Justices articulated concerns about the father’s argument. Among the concerns, the fact that other signatories to the Hague Convention do not agree with this argument and that this proposed rule, providing for the nearly automatic return of the child, would limit or even preclude courts from taking into consideration the best interest of the child.
The mother’s lawyer argued that the text, purpose, and drafting history of treaty must control. The United States, represented by the Solicitor General’s office, also argued on behalf of the mother’s position. During the mother’s arguments, the Justices raised concern that following the text of the treaty would encourage parents to abduct their children and purposefully conceal their whereabouts for the one-year period.
On March 5, 2014, the Court held unanimously that the one-year period is not subject to tolling. In his opinion, Justice Thomas wrote, “the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12. Unlike federal statutes of limitations, the Convention was not adopted against a shared background of equitable tolling. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the 1-year period in Article 12 is not a statute of limitations. And absent a presumption in favor of equitable tolling, nothing in the Convention warrants tolling the 1-year period.”
To read more about the oral arguments, See Amy Howe, Argument analysis: Justices unsatisfied with options in custody case, SCOTUSblog (Dec. 11, 2013, 1:53 PM), http://www.scotusblog.com/2013/12/argument-analysis-justices-unsatisfied-with-both-sides-in-custody-case/
To hear the full oral arguments, along with the transcript of the arguments, visit Oyez (http://www.oyez.org/cases/2010-2019/2013/2013_12_820).
To read briefs regarding this case, including amicus briefs, visit http://www.scotusblog.com/case-files/cases/lozano-v-alvarez/