Court Sides With Abducting Parent on Child's Return

Court Sides With Abducting Parent on Child's Return Cravath, Swaine & Moore's Lauren Moskowitz

The U.S. Supreme Court, increasingly drawn into disputes over international child abductions, ruled on Wednesday that a treaty’s one-year period to demand return of a child cannot be extended because the abducting parent concealed the child’s location.

When a parent flees with his or her child to another country, Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction generally requires that country to return the child immediately if the other parent requests return within one year.

In Lozano v. Alvarez, Manuel Lozano argued that the one-year period was subject to equitable tolling when the child’s whereabouts have been hidden from the other parent. In a unanimous opinion by Justice Clarence Thomas, the high court disagreed.

“Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established back drop of American law,” Thomas wrote. “It does not follow, however, that we can export such background principles of United States law to contexts outside their jurisprudential home.”

Thomas added: “Even if the presumption in favor of equitable tolling had force outside of domestic law, we have only applied that presumption to statutes of limitations. The 1-year period in Article 12 is not a statute of limitations.”

Lozano filed his petition for return 16 months after the mother, Diana Alvarez, left their home in London with their 3-year-old daughter. Mother and daughter lived in a shelter for seven months and subsequently made their way to New York, where they lived with Alvarez’s sister and her family.

Lozano and Alvarez had starkly different portrayals of their home life. Lozano claimed it was happy, but Alvarez contended he was physically abusive and their daughter was traumatized by the situation.

A federal district court held a two-day evidentiary hearing on Lozano’s petition. The court found that Lozano held custody rights that he was exercising when his daughter was removed, but the court denied his petition for return on the basis of an exception to the return remedy: that the child was by that time settled in New York. The U.S. Court of Appeals for the Second Circuit affirmed.

Although the Hague Convention is designed to discourage child abduction, Thomas wrote, it “does not pursue that goal at any cost.” The child’s interest in choosing to remain or in avoiding physical or psychological harm, he said, may overcome the return remedy.

“The same is true of the child’s interest in settlement,” he wrote, saying that is not the type of interest addressed by a statute of limitations. “We are unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty.”

Justice Samuel Alito Jr., joined by justices Stephen Breyer and Sonia Sotomayor, wrote a separate concurrence to explain why courts enjoy equitable discretion under the Hague Convention to order a child’s return even after she has become settled.

“Even after a year has elapsed and the child has become settled in the new environment, a variety of factors may outweigh the child’s interest in remaining in the new country,” Alito wrote, noting factors such as the child’s interest in returning to his or her original country of residence with which he or she may still have close ties; the child’s need for contact with the nonabducting parent, who was exercising custody when the abduction occurred; the nonabducting parent’s interest in exercising the custody to which he or she is legally entitled; the need to discourage inequitable conduct (such as concealment) by abducting parents; and the need to deter international abductions generally.

The convention places no limit on its grant of discretionary power to order a child’s return, he concluded.

Alito also disagreed with Lozano’s contention that any ruling against him would render the United States an “abduction haven” where parents would conceal their children until the one-year period has run, and then claim their children had become settled and thus ineligible for return.

“But such inequitable conduct would weigh heavily in favor of re­turning a child even if she has become settled,” Alito wrote. “Given the courts’ discretion to order return in response to concealment, I do not believe the Court’s decision today risks incentivizing parents to flee with their children to this country and conceal them.”

Lauren Moskowitz, a partner in NewYork’s Cravath, Swaine & Moore, represented Alvarez pro bono in the high court.

“We are very pleased with the result,” she said. “This was not an obvious result when we were litigating it at trial. To some extent, the decision provides a lot of certainty on how the treaty will be applied. The children and parents in the United States for more than a year were losing the right to a defense they should have been entitled to all along. You get the right to raise that defense—to present the evidence the child is settled here. It’s in the convention for a reason and the interests of the child matter.”

The United States filed an amicus brief supporting Alvarez. Shawn Regan, a partner in the New York office of Hunton & Williams, represented Lozano.

The Lozano decision is the third international child abduction ruling in the Supreme Court in less than four years.

Contact Marcia Coyle at