Spring 2014 Newsletter: Lozano Presents A New Twist on the Application of the Hague Convention on Civil Aspects of International Child Abduction in the USA

By  Wendy O. Hickey, Esq.

On March 5, 2014 the US Supreme Court decided the case of Lozano v. Alvarez and, in so doing, may have just incentivized parents who kidnap their child from a foreign jurisdiction to the USA to keep the location of the child secret, at least for the first year after the kidnapping. 

By way of brief background, the intention of the Hague Convention on Civil Aspects of International Child Abduction (hereafter Hague Convention) is to promote a swift return a child who has been wrongfully retained by a parent in a foreign jurisdiction, to the child’s habitual residence for a determination of custody.  The request for return needs to be made within one year of the wrongful retention for an automatic return order to apply.  Of course, even in situations where the automatic return order applies, there are certain defenses available including a so-called Article 13(b) defense if the return of the child would create a grave risk of harm to the child or an intolerable situation.  Other available defenses to the return include that the left behind parent acquiesced to the removal or that the child is well settled in the new location.  The case of Lozano v. Montoya Alvarez specifically addressed the issue of the child being well settled in her new environment.

The facts as found by the District Court in the case are as follows:  Diana Lucia Montoya Alvarez and Manuel Jose Lozano had a child together in October, 2005 in London, England.  Montoya Alvarez described the parties’ relationship as physically and emotionally abusive.  The court found Lozano’s claim to the contrary not credible.  The child appeared to suffer as a result of her home life with reports being made to her doctor that she was withdrawn, refused to speak at nursery school and wet the bed.  When the child was three years old, Montoya Alvarez traveled to New York to visit her sister.  The child was left behind with Lozano and his mother, the child’s paternal grandmother, who was visiting.  On her return to London, Montoya Alvarez become concerned about the child’s fearful behavior in the presence of Lozano.  She left the parties’ home with the child the following day going first to a woman’s shelter for seven months and eventually to New York to her sister’s home.

On arriving in New York, Montoya Alvarez took the child to a therapist who diagnosed her with PTSD.  Within six months of arriving in New York, after receiving ongoing therapy, the child was described as completely different, her symptoms having abated and she was able to speak freely about her emotions.

Meanwhile, just after Montoya Alvarez and the child departed the family residence, Alvarez began looking for them.  In July, 2009, Alvarez sought court orders to provide him with the right to have regular contact and an active role in the child’s life.  He also sought orders to compel the Montoya Alvarez sisters, who resided in England, the child’s doctor and nursery to disclose the child’s location.  It wasn’t until March 15, 2010 that Lozano determined the child was no longer in England and filed a form with the Central Authority for England and Wales seeking the child’s return.  It was at that point he suspected Montoya Alvarez had taken the child to New York.  Unfortunately for Montoya, he did not file his Petition for Return of the child with the US District Court for the Southern District of New York until November 10, 2010, some sixteen months after the child left England.

Because the petition was filed more than a year after the child’s wrongful removal, the District Court denied Lozano’s petition on the basis that the child was now well settled in New York.  In Re Lozano, 809 F. Supp. 2d 197, 230, 234 (SDNY 2011).  The court rejected Lozano’s argument that the 1 year period to seek the return of the child ought to be extended because Montoya Alvarez had withheld the location of the child.  Lozano appealed to the Second Circuit where it was determined that allowing equitable tolling to delay consideration of the child’s interests would undermine the purpose of the Hague Convention.  697 F. 3d 41, 54 (2012). 

The US Supreme Court then granted certiorari to decide whether Article 12’s 1-year period is subject to equitable tolling. 

As a general principle, equitable tolling pauses the running of, or “tolls,” a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.  572 U.S. _____ (2014).  The availability of equitable tolling is a question of statutory intent.  Id.  Because the Hague Convention is a treaty and not a federal statute, the court needs to look to the intent of the parties by looking to the document’s text and context.  Id.  Having so looked, the Court concluded that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.  Id.  The Court held that “expiration of the 1 year period in Article 12 does not eliminate the remedy the Convention affords the left-behind parent – namely, the return of the child.  Before the one year has elapsed, Article 12 provides that the court ‘shall order the return of the child forthwith.’  But, even after that period has expired, the court ‘shall also order the return of the child unless it is demonstrated that the child is now settled.’”  Id.   The court went on to say that “the continued availability of the return remedy after one year preserves the possibility of relief for the left-behind parent and prevents repose for the abducting parent.”  Id

The Court was concerned that the “practical effect of the tolling that Lozano requests would be to delay the commencement of the 1-year period until the left-behind parent discovers the child’s location.  Commencing the 1-year period upon discovery is the obvious alternative to the commencement date the drafters actually adopted because the subject of the Hague Convention, child abduction, is naturally associated with the sort of concealment that might justify equitable tolling under other circumstances.”  Id.  The Court concluded “it would have been a simple matter if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child’s whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child’s whereabouts’.  Given that the drafters did not adopt that alternative, the natural implication is that they did not intend the 1-year period to commence on that later date.”  Id.            

In rationalizing the decision to reject Lozano’s argument that failing to toll the 1-year period promotes concealment of the child, the Court took the position that steps taken to promote concealment can also prevent stable attachments that make a child “settled” citing Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (MD Fla. 2002) among other cases. 

While that may be true, it is equally true that the Court had other options than to outright reject the notion of equitable tolling of the 1-year period.  For example, the Court could have adopted language from the more recent 1996 Hague Convention on Jurisdiction and Protection of Children (Protection Convention).  Article 7(b) of the protection Convention provides that, in the case of wrongful removal or retention, jurisdiction passes to the new State where the child resided in that new State for at least one year after the left behind parent has or should have had knowledge of the whereabouts of the child and no request was timely filed and the child is now settled in the new State.  Alternatively, the Court could have adopted the position that where the child’s whereabouts are unknown, the filing of an application with the Central Authority of the child’s habitual residence will be considered the commencement of proceedings for purposes of Article 12.

Article 11 of the Convention provides that if there is no decision on a return petition within 6 weeks from the date of commencement of the proceedings, the Central Authority of the requesting State shall have the right to request a statement of the reasons for the delay from the requested State.  There is no penalty to the requested State for failing to comply with the 6 week time frame contemplated in the Convention.  Practically speaking, it is more unusual for a case to be adjudicated within the 6 week timeframe contemplated in the convention.  It is not at all unusual for cases to linger beyond the 6 week period for a year or two or more.  In a significant number of the cases filed in the United States within the one-year period, final judgment was rendered two or more years after commencing the action.  Those delays, whether due to crowded court calendars or the use of delay tactics by the abducting parent, do not constitute grounds to raise the well settled defense.  But, from the child’s perspective, there is really no difference whether the time elapsed is due to concealment, delay tactics of the abductor, or overcrowded court calendars.  See, Brief for the International Academy of Matrimonial Lawyers As Amicus Curiae, filed in this matter.

By failing to toll the 1-year period, the Court has opened up the cases filed in the US to the very inquiry the Convention seeks to prevent – determining whether the child has acclimated to its new surroundings necessarily entails the kind of best interest of the child inquiry the Convention seeks to avoid.  Now, parents involved in this type of dispute could very well expect to fund two separate custody disputes.  And, even worse, the child at issue could very likely be subject to two back to back custody evaluations and battles.  Surely one such inquiry is bad enough.

The IAML’s Amicus Brief summed up this very outcome as “vitiating the deterrent factor” and “encouraging parents who contemplate abduction to also conceal the child in order to insure a successful defense to a petition seeking return of the child”  -- an announcement to the abducting parents that “their unlawful actions will probably be successful if they also take steps to conceal the child.”   We will now have to wait and see if this decision appears to make the USA a haven for abducting parents and their children.

Attorney Wendy Overbaugh Hickey is a graduate of Fisher College (1994), Suffolk University (1998) and Suffolk University School of Law, cum laude (2003).  She has been employed by Nissenbaum Law Offices since 1994 and, since 2003 has been practicing all aspects of family law.

Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).  She is active in the Boston Bar Association (Member of the Family Law Section Steering Committee and Co-Chair of the Family Law Section Newsletter Committee) and is also a member of the Massachusetts Bar Association, the Women’s Bar Association and the American Bar Association.  Wendy is also a member of the American Academy of Matrimonial Lawyers Foundation.

Wendy co-authored “What You Need To Know About Vaughan Affidavits” which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.         

She has lectured at CLE’s on the topic of International Child Abductions under the Hague Convention.

Wendy has been named a Super Lawyer by Boston Magazine’s publication of Super Lawyers in 2013 and prior to that as a Rising Star for the last few years.