Lozano v. Alvarez, Docket No. 11–2224–cv.

• Citation: 697 F.3d 41
• Decision Date: 01 October 2012
• Docket Number: Docket No. 11–2224–cv.
• Parties: Manuel Jose LOZANO, Petitioner–Appellant, v. Diana Lucia Montoya ALVAREZ, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

697 F.3d 41

Manuel Jose LOZANO, Petitioner–Appellant,

v.Diana Lucia Montoya ALVAREZ, Respondent–Appellee.

Docket No. 11–2224–cv.

United States Court of Appeals, Second Circuit.

Argued: Aug. 22, 2012.

Decided: Oct. 1, 2012.

John R. Hein, New York, N.Y. (Shawn Patrick Regan, Amos R. Barclay (to be admitted), Kristin Kramer (to be admitted), New York, N.Y., Sharon M. Mills (to be admitted), Washington, D.C., Fran R. Aden, Houston, Tex., on the brief), Hunton & Williams LLP, for Petitioner–Appellant.

Lauren A. Moskowitz (Rachel G. Skaistis, on the brief), Cravath, Swaine & Moore LLP, New York, N.Y., for Respondent–Appellee.

Ellen Blain, Assistant United State Attorney (Benjamin Torrance, Assistant United States Attorney, Geoffrey M. Klineberg, Counselor, Department of State, Harold Hongju Koh, Legal Adviser, Department of State, Mark B. Stern, Adam C. Jed, Attorneys, Appellate Staff, Civil Division, Department of Justice, Stuart F. Delery, Acting Assistant Attorney General), for Preet Bharara, United States Attorney for the Southern District of New York, for Amicus Curiae United States of America.

Before: KATZMANN, WESLEY, and LYNCH, Circuit Judges.

KATZMANN, Circuit Judge:

Two now-separated parents dispute whether courts in the United States or the United Kingdom should decide who has custody of their five-year-old child. ¹ To resolve this case we must address two questions of first impression for this Court regarding the interpretation of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) (“Hague Convention” or “Convention”): (1) whether the “now settled” defense ² to the return of an abducted child is subject to equitable tolling; and (2) whether a child who lacks legal immigration status in the United States can nevertheless be found to be settled here within the meaning of the Convention. We hold that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status. We also consider and reject the petitioner's objections to the district court's (Karas, J.) findings of fact.

BACKGROUND

A. Factual Background

Diana Lucia Montoya Alvarez (“Alvarez”) and Manuel Jose Lozano (“Lozano”) (collectively, the “Parties”), who are both originally from Colombia, met and began dating in London in early 2004. In re Lozano, 809 F.Supp.2d 197, 203 (S.D.N.Y.2011). They never married. Id. at 203–04. The Parties' descriptions of their relationship differ. Lozano acknowledges that he and Alvarez had “normal couple problems,” but claims that they were generally “very happy together.” Id. at 204 (internal quotation marks omitted). In contrast, Alvarez asserts that Lozano “treat[ed] her badly.” Id. She testified that, among other things, Lozano “tried to kick her in the stomach when she was pregnant, ... called her a prostitute, and raped her four times.” Id. Lozano denies all of these allegations. Id. The district court found that Lozano's claims that he never insulted or mistreated Alvarez in any manner were not credible, but also concluded that there was insufficient evidence from which to conclude that Lozano had physically or sexually abused either Alvarez or the child. Id. Accordingly, apart from finding that Lozano mistreated Alvarez in some way, the district court declined to make precise findings regarding what abuse occurred. See id.

From the child's birth on October 21, 2005, until November 19, 2008, Lozano, Alvarez, and the child lived together in London. Id. at 206–07. In October 2008, Alvarez spoke with the child's doctor regarding a host of concerns, including the child's silence at the nursery, frequent crying, nightmares, and bed-wetting. Id. The child's nursery manager also noted the child's unusual behavior and concluded that the “home ‘environment obviously had a negative effect upon [her].’ ” Id. at 207. Based on the foregoing, the court found that the child had been exposed to, and negatively affected by, the problems in the couple's relationship. Id.

On November 19, 2008, shortly after visiting her sister Maria in New York, Alvarez “left [the couple's apartment] to bring the child to nursery school and never returned.” Id. at 209. For the next seven months, Alvarez and the child resided at a women's shelter. Id. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they have lived since that time. Id. at 210.

In New York, Alvarez and the child live with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. Id. at 211. Alvarez has not had a job in the United States, but Maria has been employed as a nanny for the same family for four years and her partner owns a grocery business. Id. “Because [Alvarez] and the child have British passports, they were allowed to enter the United States without a visa” for a stay of ninety days or less. Id. This period, however, expired in October 2009. Id. Alvarez testified that she has spoken with immigration authorities about the possibility of being sponsored by Maria, who is a United States citizen. Id. Since her arrival in New York, the child has attended the same school and, at the time of the proceedings before the district court, was enrolled in kindergarten. Id. The child's Academic Standards Reports from the 2009–2010 school year indicate that the child has been making progress both socially and academically. Id. Outside of school, in addition to spending time with members of her extended family, the child has friends whom she meets at the park and the library. Id. The child is also enrolled in ballet classes and, on the weekends, attends church with Alvarez. Id. at 212.

After arriving in New York, both the child and Alvarez began receiving therapy from a psychiatric social worker at a family medical clinic. Id. The therapist testified that “when she first met the child, the child was unable to speak, make eye contact, or play in the therapist's office.” The therapist further noted that the child “would wet herself, was hyper-vigilant, and had a very heightened startle response.” Id. By February 2010, the therapist diagnosed the child with post-traumatic stress disorder (“PTSD”) 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.” Id. Within six months of arriving in New York, however, Alvarez reported that the child's behavior had improved. Id. The therapist agreed with this assessment, describing the child as “ ‘completely different.’ ” Id. In particular, the child had stopped bed-wetting, had made friends at school, was excited to play, and was able to speak freely regarding her feelings. Id.

After Lozano filed his petition for return in December 2010, Alvarez and the child resumed meeting with the therapist. Id. In a December 9, 2010 meeting, “the child ‘stated that she was scared because her mommy seemed so worried.’ ” Id. (internal quotation marks omitted). The therapist's notes from a January 31, 2011 session indicate that when asked, out of Alvarez's presence, whether she wanted to see Lozano, the child responded “no.” Id.

After Alvarez's departure, Lozano took a number of steps to attempt to find his child. Immediately after Alvarez left, he reached out to her sister in London, who denied any knowledge of Alvarez's whereabouts. Id. at 209. In the summer of 2009, Lozano filed an application with a British court to “ensure that he obtains regular contact with his child.” Id. at 210 (brackets omitted). He also, via court filing, submitted orders to Alvarez's sisters and her former counsel, as well as the child's nursery and doctor and various police and government offices, seeking information on the child's whereabouts. Id. “After ... ‘exhaust[ing] all possibility that [the child] was still in the [United Kingdom],’ on March 15, 2010, [Lozano] filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom.” ³Id. at 210. The application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. Id.

B. Proceedings Before the District Court

On November 10, 2010, Lozano filed a Petition for Return of Child (the “Petition”) pursuant to Article 2 of the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11603 (2005) (“ICARA”), in the United States District Court for the Southern District of New York, requesting an order requiring that the child be returned to London to have a British court make a custody determination. Id. at 202. Accompanying the Petition was an Emergency Petition for Warrant in Lieu of Writ of Habeas Corpus (“Emergency Petition”).

Both parties subsequently retained experts to examine the child and determine whether returning the child to the United Kingdom would pose a risk of causing her psychological harm. Alvarez's expert, Dr. B.J. Cling, concluded that “the child was ‘potentially at risk’ ” of “ ‘another psychological breakdown’ ” if she “were to be forcibly returned to the [United Kingdom] for custody evaluation.” Id. at 214. Lozano's expert, Dr. Michael Fraser, concluded that the child was at an “ ‘increased risk for some degree of psychological maladjustment if she is required to move again; but the potential negative effects depend on many factors.’ ” Id. at 216.

The Court held an evidentiary hearing on February 2 and 3, 2011, at which it admitted both parties' proffered expert reports, received exhibits into evidence, and heard testimony from Lozano, Alvarez, the therapist, Dr. Cling, and Dr. Fraser. Id.

On February 18, 2011, ...