Supreme Court Decides Lozano v. Alvarez
Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction requires a court to "order the return of the child" when a court receives a petition for return within one year after a parent abducts the child and flees to another country. If, however, the proceedings are commenced after the one-year period, then the court "shall order the return of the child, unless it is demonstrated that the child is now settled in its new environment." On March 5, 2014, a unanimous Supreme Court held in Lozano v. Alvarez, No. 12-820, that this one-year period is not subject to equitable tolling.
In November of 2008, Alvarez, with her child, left Lozano, the child's father, with whom she lived in the United Kingdom, and never returned. They lived at a women's shelter in the UK for the next seven months before moving in with Alvarez's family in New York in July 2009. The child's therapist in New York diagnosed her with post-traumatic stress disorder; within six months, however, she was a "completely different child" and doing well. More than 16 months after Alvarez and the child left the United Kingdom, Lozano filed a petition in New York, pursuant to the Hague Convention, for the return of the child. The district court denied his petition because more than one year had passed after the wrongful removal and the child was now settled in New York. The court highlighted the stability in the child's family and home life and concluded repatriation would be "extremely disruptive." The Second Circuit affirmed, agreeing that allowing equitable tolling to delay consideration of the child's interests would undermine the purpose of the Hague Convention.
The Supreme Court affirmed, holding that equitable tolling is not available. In interpreting a treaty like the Hague Convention, the Court's "duty is to ascertain the intent of the parties by looking to the document's text and context." Unlike federal statutes where "Congress is presumed to incorporate equitable tolling … because equitable tolling is part of the established backdrop of American law," it is "inappropriate to deploy this background principle of American law automatically when interpreting a treaty." While no court of last resort has resolved the question, several intermediate appellate courts in the signatory states have rejected equitable tolling. "The American presumption that federal statutes of limitations can be equitably tolled therefore does not apply to this multilateral treaty."
The Court went on to explain that even if equitable tolling "had force outside of domestic law," it applies only to statutes of limitations. The one-year period at issue is not a statute of limitations. "Rather than establishing any certainty about the respective rights of the parties, the expiration of the 1-year period opens the door to consideration of a third party's interests, i.e., the child's interest in settlement." The Court also rejected an extension or delay of the one-year period based on the "discovery" of the child's location by the left-behind parent. "Given that the drafters did not adopt that alternative, the natural implication is that they did not intend the 1-year period to commend on that later date. We cannot revisit that choice.
Justice Thomas delivered the opinion for the unanimous Court. Justice Alito filed a concurring opinion, joined by Justices Breyer and Sotomayor.
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