The one-year period that must expire before a parent in an international custody dispute can raise the defense that a child is settled in his or her new country cannot be equitably tolled, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
Addressing an issue of first impression, the Second Circuit held equitable tolling does not apply to the one-year period for the “now-settled” defense set forth in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.
Resolving a second novel issue, the circuit also held that a district court in making the determination that a child is “now-settled” and should remain where they are “need not give controlling weight to a child’s immigration status.”
Diana Lucia Montoya Alvarez and Manuel Jose Lozano lived in London with their daughter, who is now nearly 7, until the couple’s relationship fell apart.
Alvarez would later claim that Lozano’s abuse motivated her to take their daughter to a shelter for seven months and then to New York in July 2009. The child, enrolled in school in New York since 2009, saw a therapist who reported she suffered from post-traumatic stress disorder caused by her “experience living in the United Kingdom before coming to New York, including living in a shelter system, having to move to a new country, and knowing that her mother had been harmed or threatened.”
The therapist later reported that the child did not want to see Lozano.
Lozano filed a petition for return of the daughter in November 2010 under Article 2 of the Hague Convention and International Child Abduction Remedies Act, 42 U.S.C. §11603 (ICARA) in the Southern District.
Southern District Judge Kenneth Karas (See Profile) rejected Lozano’s argument that the one-year period built into the Article 12 defense should be equitably tolled until he could reasonably have learned the child’s whereabouts.
Karas said the now-settled defense asserted by Alvarez applies and was sufficient reason for a U.S. court to decide the child’s custody instead of an English court. He also ruled there was nothing to suggest “the immigration status of the child and Respondent is likely to upset the stability of the child’s life here in New York.”
Lozano appealed to the Second Circuit, where Judges Robert Katzmann (See Profile), Richard Wesley (See Profile) and Gerard Lynch (See Profile) heard oral arguments in Lozano v. Alvarez, 11-2224-cv, on Aug. 22.
“We agree with the district court and hold that while an abducting parent’s conduct may be taken into account when deciding whether a child has settled into his or her new environment, the one-year period set out in Article 12 is not subject to equitable tolling,” said Katzmann, writing for the court.
Although at least three other circuits have held Article 12 can be equitably tolled (the Fifth, Ninth and Eleventh), Katzmann said neither Article 12 nor the Civil Aspects of International Child Abduction, which implemented Article 12,”explicitly permit or prohibit tolling of the one-year period before a parent can raise the now-settled defense.”
Katzmann said “the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be ‘now settled in its new environment.’”
“Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of the child who has been in a new environment for more than a year before ordering that child be returned to her country of habitual residency,” he said.
And tolling would be inconsistent with the purpose of the statute, which is “to deter family members from removing children to jurisdictions more favorable to their custody claims,” he said.
“Simply put, the Convention is not intended to promote the return of a child to his or her country of habitual residency irrespective of that child’s best interests; rather the Convention embodies the judgment that in most instances, a child’s welfare is best served by a prompt return to that country,” Katzmann said.
With oral argument approaching, the circuit had requested the U.S. Department of State to submit an amicus brief, and it credited the department’s opinion that equitable tolling does not apply to the one-year period.
The same was true on the second issue, as the department said the “child’s immigration status should not be dispositive standing alone, but may be one factor in a court’s determination of whether the child is now settled in her new environment.”
Katzmann said the Second Circuit disagreed with Lozano’s argument that a well-settled finding should be barred where an abducted child resides in the abducted-to country illegally.
Katzmann said the term “settled” should be “viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.”
The judge said this “fact-specific, multi-factor test that we formally adopt is consistent with the Government’s understanding of Article 12 as expressed in its amicus brief.”
Finally, the circuit upheld Karas’ decision finding that the child was settled in the United States, and in declining to order her to be returned to the United Kingdom for custody proceedings. It is now up to the father to bring a petition in New York Family Court if he wants to press his case.
John Hein of Hunton & Williams represented Lozano.
Lauren Moskowitz of Cravath, Swain & Moore argued for Alvarez.
Assistant U.S. Attorney Ellen Blain was one of several attorneys who represented the U.S. government in an amicus brief.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.