On December 11, 2013, the United States Supreme Court will hear oral arguments in Lozano v. Alvarez, a case arising under the Hague Convention on the Civil Aspects of International Child Abduction. This is the second consecutive year that that the United States Supreme Court is considering the provisions in this Convention: last term, the Court decided Chafin v. Chafin, 133 S.Ct. 1017 (2013), holding that the jurisdiction of American appellate courts does not end when the child has been returned to another country.
Lozano now probes one of the exceptions to the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction. Although ordinarily a court must return a child pursuant to the Convention, Article 12 provides an exception if the petition for return of the child is filed more than 1 year after the child's removal and a preponderance of the evidence shows that the child is now settled in her environment such that her return would not be in her best interests. The question in Lozano is whether a court may equitably toll (i.e., suspend) the running of this one-year filing period when the abducting parent has concealed the whereabouts of the child.
Respondent Diana Lucia Montoya Alvarez met Petitioner Manuel Jose Lozano in London in early 2004, after both emigrated from Columbia. Their relationship soon deteriorated and Ms. Alvarez alleged abuse. In October 2005, she gave birth to their child. While they never married, they continued to cohabitate after the child's birth.
In November 2008, Ms. Alvarez went to New York to visit her sister. She testified that upon her return, Mr. Lozano acted suspiciously and their child seemed frightened. Ms. Alvarez fled to a domestic violence shelter, where she and the child lived for several months.
On July 3, 2009, Ms. Alvarez and her then four-year-old daughter departed the United Kingdom for France. A few days later, they arrived in New York to live with Ms. Alvarez's sister, whom Ms. Alvarez had visited earlier. Ms. Alvarez enrolled her daughter in school but did not change the child's name to avoid detection. She also sought therapy for the child, who was showing signs of post-traumatic stress disorder but improved over time.
More than one year after his daughter left the United Kingdom, Mr. Lozano filed a petition pursuant to the Hague Abduction Convention in the Southern District of New York, seeking the return of the girl to the United Kingdom for a custody determination. He argued that, from the moment of the child's abduction, he had undertaken an exhaustive search for her in England with the help of the police, authorities, and English courts. He noted that he did not know she had left the country, which triggered the one-year period to file a petition.
Although Mr. Lozano suspected that Ms. Alvarez would return to New York with the child to live with her sister, he never contacted the sister to see if Ms. Alvarez was living with her. He eventually contacted the U.S. State Department, and it was confirmed that Ms. Alvarez had entered the United States with the child. He hired a private investigator who tracked her down and he filed a petition under the Hague Convention, more than 16 months after the wrongful removal of the child from the United Kingdom.
After a 2-day hearing, the district judge denied Mr. Lozano's petition, holding that Ms. Alvarez had satisfied the exception to the return of the child provided for under Article 12 of the Hague Abduction Convention. This exception allows denial of a child's return if the petition is filed more than 1 year after the child's removal and a preponderance of the evidence shows that the child is now settled in her new environment such that her return would not be in her best interests. The district court noted that even if equitable tolling were available, it would not apply because Mr. Lozano was not diligent enough in his search for the daughter and Ms. Alvarez did not conceal the girl's whereabouts to the extent justifying equitable tolling.
On appeal, the United States Court of Appeals for the Second Circuit recognized that, in essence, Mr. Lozano advocated interpreting the one-year period in the Convention as a type of statute of limitations, which traditionally could be tolled. The Second Circuit disagreed with this interpretation, noting that the one-year period was not intended to function like a statute of limitations, and could not be tolled.
After the United States Supreme Court agreed to hear the case, the First Circuit joined the Second Circuit in holding that the one-year period in Article 12 of the Convention is not subject to equitable tolling. On the other hand, the Fifth, Ninth, and Eleventh Circuits have found that the one-year period is in fact subject to equitable tolling. This circuit split allowed Lozano to make its way to the United States Supreme Court for resolution on the question of whether the one-year period required for filing a petition for return can be tolled like a statute of limitations.
In her brief to the Supreme Court, Ms. Alvarez argues that the Convention text does not mention tolling and that the drafting history of the Convention shows that while a separate standard was considered in the event of a child's concealment, it was ultimately rejected. Ms. Alvarez further argues that the lack of tolling protects the child's best interests by eliminating uncertainty after a year passes. The United States, in its amicus brief, also argued that the one-year period in the Convention is not a statute of limitations and therefore should not be tolled.
On the other hand, Mr. Lozano argues in his brief to the U.S. Supreme Court that during Convention negotiations, the United States supported the view of the one-year period as a statute of limitations. Mr. Lozano also points out that not tolling the period rewards bad conduct: abducting parents may conceal their child's whereabouts for a year to defeat the left-behind parent's efforts for the return of the child. Several child-oriented organizations have filed amici curiae briefs in support of Mr. Lozano's position.
The case is Lozano v. Alvarez, No. 12-820.