U.S. Supreme Court ‘s March 5 decision in Lozano v. Alvarez held that equitable tolling principles do not apply to the 1-year provision for mandatory return of the child.
Proceedings Under the Convention
The Hague Convention on the Civil Aspects of International Child Abduction, signed by the United States in 1988, establishes a procedure for parents to petition to return a child to his or her country of habitual residence. The treaty was created to facilitate the prompt return of children who were wrongfully removed from their home country, and to ensure that the parties to the treaty mutually respect the custody laws of each country. The treaty comes into effect when one parent leaves the country of habitual residence without the agreement of the other parent (the “left-behind” parent), when both parents have actively enjoyed custody of the child. Each country that signs the treaty maintains a Central Authority from which the left-behind parent can seek assistance in filing a petition for the return of the child in the new country of residence. If the petition for return is filed within one year after the wrongful removal, the court in the new country of residence is required to order the child returned to the country of habitual residence for a determination of custody rights under that country’s laws. If the petition for return is filed more than a year after removal, the court shall return the child to the country of habitual residence unless the child has become settled in the new residence.
Facts of the Case
The parties resided in London when their daughter was born in 2005. The parties now disagree whether their relationship was a good one, or one filled with discord and perhaps violence. Nonetheless, in November, 2008, the child’s mother relocated with the child to New York and never returned. The child’s father (Lozano) initiated a search and, after determining that the child was no longer in the United Kingdom, sought assistance from the Central Authority for England and Wales. In November, 2010, he filed a petition for return in the United States District Court for the Southern District of New York. The legal issue presented to the courts was whether the 1-year mandatory return provision applied, based on equitable tolling principles.
The Decision
The Supreme Court determined that equitable tolling principles, which are principles of common law arising under American legal practices, do not apply to the Hague Convention. The Court first determined that tolling principles apply only to statutes of repose created by law. The Hague Convention is a treaty, and the fact that it was implemented in the United States via a federal law (the International Child Abduction Remedies Act) does not change the nature of the treaty relationship or requirements. A treaty, by definition, must honor the shared agreement of all the signatory nations. The other parties to the Hague Convention do not share the tradition of equitable tolling principles, and the Court determined that it would be improper to incorporate them into decisions under the treaty.
Further, the Court reasoned, the Hague Convention itself contains provisions that address the concerns of the father in this case. Lozano had argued that parents may flee to the United States and conceal their whereabouts to avoid the mandatory return provisions. The Court agreed that the purpose of the treaty is to discourage child abduction. However, the treaty requires consideration of the child’s wellbeing, including the potential for harm if returned to the habitual residence as well as whether the child has in fact become settled in the new residence. The Court noted that parental attempts to avoid detection by the left-behind parent may prevent the child from becoming settled. Examples of this include frequent moves and isolation from school or social activities. In addition, the courts must consider the ties the child may still have to the habitual residence in the form of ongoing familial and other relationships.
Lehigh Valley Family Law is a publication of the KingSpry Family Law Practice Group. It is meant to be informational and does not constitute legal advice. Our editor-in-chief is Donald F. Spry, II.
