By Maxim Law of Maxim Law, PLLC posted in Child Custody on Wednesday, March 5, 2014.
The U.S. Supreme Court issued its Opinion today in LOZANO v. MONTOYA ALVAREZ holding that the one-year period of time for an automatic return of a child without consideration of whether the child is well-settled in a new environment may not be equitably tolled, even if the abducting parent has concealed the child’s whereabouts until after the one-year period has passed.
Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction provides that a child shall be immediately returned if the left behind parent files a petition for return in a U.S. Court within one-year after the child was wrongfully removed from her country of habitual residence. However, when a court proceeding is commenced after the expiration of one-year from the wrongful removal, the Court can deny the child’s return if evidence is presented that the child is well-settled in her environment.
The Lozano case involved a Father who petitioned the Court after the one-year time period expired, arguing that the Court should toll the one-year period because he could not locate Mother and child for over sixteen months after Mother left the United Kingdom with the child. The Father had a compelling argument that tolling the one-year period of time would deter international child abduction.
Comparing equitable tolling of the one-year “well-settled” exception to equitable tolling in statutes of limitation, the Court noted the difference between the two is that a the Hague Convention, as a treaty, is to be interpreted based on the intent of the parties who entered into the treaty as opposed to a presumption in favor of equitable tolling of a statute, which must be consistent with the law itself.
The Court relied on the plain language of the Convention pointing out that precluding equitable tolling is more consistent with the text of the Convention, which does not mention the possibility that the one-year period may be extended.
The opinion can be found at: http://www.supremecourt.gov/opinions/13pdf/12-820_3co3.pdf