Case Tests Limits of Child-Abduction Treaty

Lozano, meanwhile, began a search for his daughter. In 2010, after concluding she must be living in the United States, he filed a petition in federal district court seeking her return pursuant to the Hague Convention. Alvarez, according to her brief, never concealed her identity or that of the child and Lozano was aware of her sister and her sister's address.

Following an evidentiary hearing, the district court held that Lozano had established a prima facie case of wrongful retention under the Hague Convention. Under the convention's terms, the child would have to be returned to England for a British custody hearing unless Alvarez satisfied one of the convention's affirmative defenses. The court found that she did satisfy the “now settled” defense because the child had lived in the United States for more than a year and was thriving.

Lozano argued that, because his child had been concealed, the one-year “now settled” period should be tolled until he could have reasonably discovered her location. The district court and the U.S. Court of Appeals for the Second Circuit disagreed, finding that the convention's language did not allow equitable tolling ' a position also embraced by the U.S. Department of State. However, some courts have allowed it.

The Arguments Raised: Equitable Tolling

During arguments on Dec. 11, 2013, Lozano's counsel, Shawn Regan of New York's Hunton & Williams, argued that the convention's purpose is to deter child abductions. “Equitable tolling furthers that aim,” he said. “By contrast, the rule adopted by the Second Circuit provides a playbook for thwarting the convention,” because the longer a child is concealed, the greater the possibility she will become “well settled.”

Justice Ruth Bader Ginsburg said the interests of the child are always of “paramount importance” in family law. Decrees that might be final in another area of law are not necessarily final in this one, because circumstances change and so might child custody. “So it seems to me that this area is hugely unfit for equitable tolling. That would leave out consideration of the child's best interests,” Ginsburg said. Under equitable tolling, she and other justices said, the child would have to be returned.

Regan spent much of his 30 minutes fielding skeptical questions from justices about whether there were other avenues under the convention to consider a child's best interests. He insisted courts could look to Article 13, which lists exceptions to return of the child ' for example, if a child is of an age and maturity to express a choice of parents.

Justice Samuel Alito Jr. agreed that the positions of his opponent and the State Department would give a “great incentive” for parents to abduct children and hide them for a time. “But on the other side ' your rule would mean that a child who is very well settled in a particular location would have to be returned to the other country for purposes of the custody determination,” he said.

And Justice Elena Kagan asked whether any other country interpreted the convention to allow equitable tolling ' an important point, she explained, because treaties are to be interpreted in a uniform way.

When Regan answered no, but that other countries misunderstand equitable tolling, Justice Antonin Scalia interjected, “Who cares if they're wrong? The point is, a treaty should be interpreted uniformly by all the parties to it. And you're telling me, well, all the rest of them interpret it another way, but they're wrong. You know, everybody is out of step but me.”

Alito later told counsel for Regan's opponents ' Alvarez's counsel, Lauren Moskowitz of New York's Cravath, Swaine & Moore,' and Assistant to the Solicitor General Ann O'Connell ' that he was “troubled” by their position that equitable tolling was not permitted because it undermines the central purpose of the convention ' to prevent harm to children. “And if you have a rule that says if you abduct the child and you can hide for a year, which isn't very difficult, then all you have to do is provide some evidence of settlement, and you are going to win ' you are going to deter return,” he said.

Judicial Discretion

Moskowitz and O'Connell argued that even when a court finds that the abducted child is well settled, the judge retains some discretion to return the child. But that concession confused several justices, who said the answer had to be “no” discretion for Alvarez to keep the child. Moskowitz said foreign courts are divided as to whether there is discretion to return a child who has been found well settled. “But I think on balance there should be some level of equitable discretion to return a settled child, but not simply because of the facts of concealment” ' which, she added, the convention's drafters had considered and rejected.

There is a real difference between equitable tolling and the discretion to return a settled child, O'Connell emphasized. “Under an equitable tolling analysis, the court would be prohibited from taking into account whether the child is settled in her new environment in determining whether to send her back,” she said.

Marcia Coyle is a reporter with The National Law Journal, an ALM sister publication of this newsletter in which this article also appeared.

The U.S. Supreme Court on Dec. 11, 2013 waded into the emotionally weighted arena of international child abductions in a battle between Columbian parents'over a little girl now living in the United States. Lozano v. Alvarez is the third case in less than four years in which the justices have agreed to interpret provisions in the 1980 Hague Convention on international child abductions. As in the two earlier cases, the justices struggled with the often competing rights of the left-behind parent and the best interests of the child.

The 'Now Settled' Exception

Manuel Lozano and Diana Alvarez lived together with their daughter in London, beginning in 2004. In 2008, Alvarez, who later testified that Lozano physically and mentally abused her, left with her daughter and lived in a shelter for seven months. In 2009, they moved to France and finally to New York, where they settled with Alvarez's sister.

Lozano, meanwhile, began a search for his daughter. In 2010, after concluding she must be living in the United States, he filed a petition in federal district court seeking her return pursuant to the Hague Convention. Alvarez, according to her brief, never concealed her identity or that of the child and Lozano was aware of her sister and her sister's address.

Following an evidentiary hearing, the district court held that Lozano had established a prima facie case of wrongful retention under the Hague Convention. Under the convention's terms, the child would have to be returned to England for a British custody hearing unless Alvarez satisfied one of the convention's affirmative defenses. The court found that she did satisfy the “now settled” defense because the child had lived in the United States for more than a year and was thriving.

Lozano argued that, because his child had been concealed, the one-year “now settled” period should be tolled until he could have reasonably discovered her location. The district court and the U.S. Court of Appeals for the Second Circuit disagreed, finding that the convention's language did not allow equitable tolling ' a position also embraced by the U.S. Department of State. However, some courts have allowed it.

The Arguments Raised: Equitable Tolling

During arguments on Dec. 11, 2013, Lozano's counsel, Shawn Regan of New York's Hunton & Williams, argued that the convention's purpose is to deter child abductions. “Equitable tolling furthers that aim,” he said. “By contrast, the rule adopted by the Second Circuit provides a playbook for thwarting the convention,” because the longer a child is concealed, the greater the possibility she will become “well settled.”

Justice Ruth Bader Ginsburg said the interests of the child are always of “paramount importance” in family law. Decrees that might be final in another area of law are not necessarily final in this one, because circumstances change and so might child custody. “So it seems to me that this area is hugely unfit for equitable tolling. That would leave out consideration of the child's best interests,” Ginsburg said. Under equitable tolling, she and other justices said, the child would have to be returned.

Regan spent much of his 30 minutes fielding skeptical questions from justices about whether there were other avenues under the convention to consider a child's best interests. He insisted courts could look to Article 13, which lists exceptions to return of the child ' for example, if a child is of an age and maturity to express a choice of parents.

Justice Samuel Alito Jr. agreed that the positions of his opponent and the State Department would give a “great incentive” for parents to abduct children and hide them for a time. “But on the other side ' your rule would mean that a child who is very well settled in a particular location would have to be returned to the other country for purposes of the custody determination,” he said.

And Justice Elena Kagan asked whether any other country interpreted the convention to allow equitable tolling ' an important point, she explained, because treaties are to be interpreted in a uniform way.

When Regan answered no, but that other countries misunderstand equitable tolling, Justice Antonin Scalia interjected, “Who cares if they're wrong? The point is, a treaty should be interpreted uniformly by all the parties to it. And you're telling me, well, all the rest of them interpret it another way, but they're wrong. You know, everybody is out of step but me.”

Alito later told counsel for Regan's opponents ' Alvarez's counsel, Lauren Moskowitz of New York's Cravath, Swaine & Moore,' and Assistant to the Solicitor General Ann O'Connell ' that he was “troubled” by their position that equitable tolling was not permitted because it undermines the central purpose of the convention ' to prevent harm to children. “And if you have a rule that says if you abduct the child and you can hide for a year, which isn't very difficult, then all you have to do is provide some evidence of settlement, and you are going to win ' you are going to deter return,” he said.

Judicial Discretion

Moskowitz and O'Connell argued that even when a court finds that the abducted child is well settled, the judge retains some discretion to return the child. But that concession confused several justices, who said the answer had to be “no” discretion for Alvarez to keep the child. Moskowitz said foreign courts are divided as to whether there is discretion to return a child who has been found well settled. “But I think on balance there should be some level of equitable discretion to return a settled child, but not simply because of the facts of concealment” ' which, she added, the convention's drafters had considered and rejected.

There is a real difference between equitable tolling and the discretion to return a settled child, O'Connell emphasized. “Under an equitable tolling analysis, the court would be prohibited from taking into account whether the child is settled in her new environment in determining whether to send her back,” she said.

Marcia Coyle is a reporter with The National Law Journal, an ALM sister publication of this newsletter in which this article also appeared.