Today the Supreme Court of the United States granted certiorari on the case of Lozano v. Alvarez, coming from the 2nd Circuit Court of Appeals. The issue concerns a district court considering petition under the Hague Convention on the Civil Aspects of International Child Abduction–specifically whether the one-year filing period is tolled when the abducting parent has concealed the child’s whereabouts from the left-behind parent.
The 2nd Circuit case involved a couple living in London with their child. The child was experiencing emotional disturbances such as bed-wetting, nightmares, and anti-social behavior, so Alvarez left with her child and ended up staying in a shelter for 7 months before taking the child to New York. One party described the marriage as normal with some typical marital fighting, but the other described a quite abusive relationship. Once in the United States, her child began to improve socially and received therapy for undiagnosed PTSD believed to be caused by the poor martial relationship back in London. Lozano attempted to find the child, and filed a petition with the British court in order to maintain regular contact with his child.
This Petition for Return of the Child pursuant to Article 2 of the Hague Convention and the International Child Abduction Remedies Act (42 U.S.C. § 11603) requested that the child be returned to London to have a British court make a custody determination. The district court determined that unless Alvarez could establish an affirmative defense, the child must be returned to the United Kingdom. On appeal, the issue was the defense, and Lozano argued that the defense is unavailable until “one year has elapsed from the date of the child’s wrongful removal or retention” and that the one-year period should be tolled until the time Lozano could reasonably have learned of his child’s whereabouts. The district court disagreed and held that a United States court should decide the issue of the child’s custody.
The 2nd Circuit Court of Appeals affirmed and held that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under the Convention, and that when making a now settled determination, courts need not give controlling weight to a child’s immigration status. In its opinion the 2nd Circuit noted that at least three other Circuit Courts have allowed the one-year period in Article 12 to be equitably tolled (the 5th, 9th, and 11th Circuits).
Article 12 of the Convention has come before the court in recent years, and states essentially that if more than one year has passed, a demonstration that the child is now settled in its new environment may be a sufficient ground for refusing to order repatriation. The 2nd Circuit reasoned: “Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary.”
The issues before the Supreme Court are as follows: 1) Whether a district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction 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, and 2) Whether an abducted child can be “settled” in the United States, within the meaning of Article 12 of the Convention, 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. The Court also asked the U.S. Solicitor General to provide the federal government’s view on this case.
Do you think that the Supreme Court should affirm or reverse the 2nd Circuit’s ruling on this case? Any opinions on how a particular Justice will side in this case?
Sources: Lozano v. Alvarez; SCOTUS blog
As to the first issue, I do not believe that it is fair to any parent or child to make they wait until it has been a full year since the child’s wrongful removal or retention. What is that year really doing for anyone? I actually believe that it is infringing on the rights of the parent whose child has been taken. As to the second issue, I believe that that this should be determined on a case by case basis. Just because this child is considered “settled” under the meaning of Article 12 does not mean that it is in their best interest to stay in the U.S. with a parent who abducted them. But, on the other hand, as it seems in this case, the child is doing much better after being taken to the U.S. I think it all depends on the circumstances of each case.
The immigration aspects of the case raises interesting questions and concerns in the wake of what could be one of our nation’s most drastic immigration reforms. While Alvarez and her child entered the United States legally, they did exceed their 90-day Visa period. Nonetheless, the illegality of their stay was anything but a main consideration of the Court. Both the district court and the 2nd Circuit focused on the fragility of the child. This discretion seems to be permitted by Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, which states that “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – b) 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.” The Convention also permits judicial and administrative authorities to consider the child’s social background before ordering his/her return.
I was pleased to see that the Honorable Judge Karas, Federal District Court Judge of the Southern District of New York who sits just a few blocks away from our law school, presided over this case at the trial level. He, like the rest of us, will anxiously await the Supreme Court’s decision on this one.