Term: 2013
Docket: 12-820
Lozano v. Montoya Alvarez
- Pro
12-820 LOZANO V. ALVAREZ DECISION BELOW: 697 F.3d 41 LIMITED TO QUESTION 1 PRESENTED BY THE PETITION. CERT. GRANTED 6/24/2013 QUESTION PRESENTED: 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: 1. 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. 2. 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. LOWER COURT CASE NUMBER: 11-2224
In the case of Lozano v. Montoya Alvarez (2013), Manuel Jose Lozano, a British resident, appealed to the US Supreme Court after his daughter was taken from England by her mother Diana Lucia Montoya Alvarez without his consent. The child had been living in New York for over a year when Mr. Lozano filed an application under the Hague Convention on International Child Abduction seeking return of his daughter to UK. However, he missed filing within one-year deadline set by convention and argued that this period should be equitably tolled because Ms. Montoya hid their child during this time making it impossible for him to file earlier. The Supreme Court ruled against Mr.Loazano stating that equitable tolling does not apply to the one-year filing requirement under Article 12 of Hague Convention on International Child Abduction which states if proceedings have commenced after expiration of one year period then court is not bound to order return if it's demonstrated that child is now settled in new environment.
In the dissenting opinion for Lozano v. Montoya Alvarez, Justice Thomas argued that the majority's interpretation of Article 12 of the Hague Convention on International Child Abduction was incorrect. He believed that allowing equitable tolling to extend or suspend deadlines contradicted both international and domestic law principles. The justice asserted that such an approach would undermine certainty in child abduction cases by introducing unpredictability into proceedings meant to be resolved swiftly and decisively. Furthermore, he contended it could potentially harm children involved by prolonging their state of limbo during custody disputes. Therefore, according to Justice Thomas' dissent, courts should not have discretion over time limits set out in treaties unless explicitly stated within those agreements.
