On behalf of The Marks Law Firm, L.L.C. posted in Child Custody, Hague Treaty and International Child Abduction on Friday, March 7, 2014
The U.S. Supreme Court on Wednesday delivered an important opinion in the area of international child abduction. In Lozano v. Montoya Alvarez, the Court held that the doctrine of equitable tolling – which normally tolls a statute of limitation until a person would actually have the ability to file the cause of action – does not apply to the Hague Treaty governing international child abduction.
First, a brief review of the Hague Treaty. Some thirty years ago, the Hague held a convention to devise a uniform system that would address the issue of international child abduction. If parents of a child have different nationalities or dual citizenship, it became too common and too easy for a parent to avoid sharing custody and simply remove the child from the country where they resided as a family and stay in another country of origin that had favorable laws regarding securing a divorce or refusing to return a child illegally retained by the abducting parent. So the convention produced a treaty – the Hague Treaty – which bound all signatories to a common system – any parent that felt his or her child had been wrongfully removed to or retained in one of the signatory countries could file a petition for return in that country. If the child did not have habitual residence in that country before the removal, the child would have to be returned to the country of habitual residence. Custody matters could only be determined by the country of habitual residence. In this way, the signatories hoped to reduce the incentive to wrongfully remove a child and make it much easier for a parent to retrieve a child from a foreign country.
One key provision of the Hague Treaty is that a parent has only one year within which to file a petition to obtain return upon a showing of wrongful removal or retention. After the one-year period, the court can consider whether the child is so settled in the new environment (even though wrongfully taken there in the first place) that return would not be appropriate. That provision was at issue in Lozano.
Father and mother resided in London with their daughter until November of 2008, when mother took the child to a woman’s shelter and ultimately settled in New York. Father did not locate mother and the child until 2010. Once he did, he filed a petition for return in federal court. Citing the one-year time period, the federal court denied relief, finding the child settled in New York. Father appealed.
In a unanimous opinion, the Supreme Court upheld the federal district court decision. While the Court sympathized with the parent who had to go to great lengths just to locate the mother and child, the Court could find no legal basis to apply the doctrine of equitable tolling to an international treaty. Typically, we use equitable tolling to allow individuals to avoid harsh statutes of limitations due to not realizing they had a claim, for example, not discovering a medical malpractice injury until after the limitations period passed. The Court did not see the one-year period as a limitation, because the parent could still file the petition; all that changed was the standard – no automatic return, with the court required to consider the settled environment of the child.
The principal concern in this case from a policy standpoint was whether not allowing tolling would result in more wrongful removals to the United States, with the hope that after a year passes, the “settlement” doctrine would keep the wrongfully removed child in the United States indefinitely. In other words, no tolling would encourage parental kidnapping. But the Court responded that would not be the result of the decision because the court only has to consider the settled environment as one factor; the complete denial of custody and contact from the other parent and the means employed could very well support a return after the one-year period passes. In the Lozano facts, the lower court noted that mother lived in a women’s shelter for seven months, substantiated her claims of abuse with medical testimony and provided other evidence that return would not be in the best interests of the child. These facts are hardly the norm in parental kidnapping cases. Rather, one parent simply seeks an advantage in another forum, perhaps not governed by the Hague Treaty, or figures the costs of travel and foreign litigation will dissuade the parent from a challenge. Courts can sift through the evidence and determine a false claim of abuse. Tipping the scales in the other direction, the Court noted, would mean automatically returning a wrongfully retained child even if doing so would be harmful to the child.
While the issue seems less simple than the unanimity of the decision, it is the position of courts in other countries that have considered the one-year limitation period.
The immediate takeaway from the case is that if you find yourself in an international child abduction situation, take immediate steps to find the child and the other parent so you may file before the one-year period passes.
If you have questions about international child abduction, contact our St. Louis family law attorneys – we can help.