Lozano v. Montoya Alvarez

Decision Date05 March 2014
Docket NumberNo. 12–820.,12–820.
Citation134 S.Ct. 1224,188 L.Ed.2d 200,572 U.S. 1
Parties Manuel Jose LOZANO, Petitioner v. Diana Lucia MONTOYA ALVAREZ.
CourtU.S. Supreme Court

Shawn P. Regan, New York, NY, for Petitioner.

Lauren A. Moskowitz, New York, NY, for Respondent.

Ann O'Connell, for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.

Ryan A. Shores, Hunton & Williams LLP, Washington, DC, Shawn Patrick Regan, Counsel of Record, John R. Hein, Kristin M. Kramer, Michael B. Kruse, Hunton & Williams LLP, New York, NY, for Petitioner.

Lauren A. Moskowitz, Counsel of Record, Rachel G. Skaistis, Carrie R. Bierman, Cravath, Swaine & Moore LLP, New York, NY, Counsel for Respondent.

Justice THOMAS delivered the opinion of the Court.

When a parent abducts a child and flees to another country, 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. The question in this case is whether that 1–year period is subject to equitable tolling when the abducting parent conceals the child's location from the other parent. We hold that equitable tolling is not available.


To address "the problem of international child abductions during domestic disputes," Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), in 1980 the Hague Conference on Private International Law adopted the Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.). The Convention states two primary objectives: "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Art. 1, id., at 7.

To those ends, the Convention's "central operating feature" is the return of the child. Abbott, 560 U.S., at 9, 130 S.Ct. 1983. That remedy, in effect, lays venue for the ultimate custody determination in the child's country of habitual residence rather than the country to which the child is abducted. See id., at 20, 130 S.Ct. 1983 ("The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence").

The return remedy is not absolute. Article 13 excuses return where, for example, the left-behind parent was not "actually exercising" custody rights when the abducting parent removed the child, or where there is a "grave risk" that return would "place the child in an intolerable situation." Hague Convention, Arts. 13(a)(b), Treaty Doc., at 10. A state may also refuse to return the child if doing so would contravene "fundamental principles ... relating to the protection of human rights and fundamental freedoms." Art. 20, id ., at 11.

This case concerns another exception to the return remedy. Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court "shall order the return of the child forthwith." Id., at 9. Article 12 further provides that the court,

"where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Ibid.

Thus, at least in some cases, failure to file a petition for return within one year renders the return remedy unavailable.

The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduction Remedies Act (ICARA). 102 Stat. 437, 42 U.S.C. §§ 11601 – 11610. That statute instructs courts to "decide the case in accordance with the Convention." § 11603(d). Echoing the Convention, ICARA further provides that "[c]hildren who are wrongfully removed ... are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." § 11601(a)(4). Finally, ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § 11603(e)(2)(B).


Diana Lucia Montoya Alvarez and Manuel Jose Lozano are the parents of the girl at the center of this dispute.1 Montoya Alvarez and Lozano met and began dating in London in early 2004. Montoya Alvarez gave birth to a daughter in October 2005.

Montoya Alvarez and Lozano describe their relationship in starkly different terms. Lozano stated that they were " 'very happy together,' " albeit with "normal couple problems." In re Lozano, 809 F.Supp.2d 197, 204 (S.D.N.Y.2011). Montoya Alvarez described a pattern of physical and emotional abuse that included multiple incidents of rape and battery. The District Court found insufficient evidence to make specific findings about domestic violence but determined that Lozano's claim that he never mistreated Montoya Alvarez was "not credible." Id., at 206.

The parties also differ as to the child's well-being during the first three years of her life. Lozano stated that he and the child had a very good relationship, and that the child was generally happy. Montoya Alvarez believed otherwise. In October 2008, Montoya Alvarez reported to the child's doctor that she refused to speak at the nursery she attended, cried often, and wet the bed. Montoya Alvarez also stated that the child refused to speak when Lozano was present. The child's nursery manager wrote that the girl was " 'very withdrawn,' " and noted that the home " 'environment obviously had a negative effect' " on her. Id., at 207. The District Court found insufficient evidence that Lozano had physically abused the child, but did conclude that the child had seen and heard her parents arguing at home.

In November 2008, when the child was just over three years old, Montoya Alvarez went to New York to visit her sister Maria. During that time, the child remained in London with Lozano and his visiting mother. When Montoya Alvarez returned on November 18, she became acutely concerned about the child's fearful behavior around Lozano. The next day, Montoya Alvarez left with the child and never returned.

Montoya Alvarez and the child lived at a women's shelter for the next seven months. After Montoya Alvarez was unable to find suitable long-term accommodations in the United Kingdom, she and the child left for France on July 3, 2009, and then for the United States, arriving five days later. Since their arrival, Montoya Alvarez and the child have lived with Montoya Alvarez' sister Maria and her family in New York.

When they arrived in New York, Montoya Alvarez and the child began seeing a therapist at a family medical clinic. The therapist testified that, at first, the child was withdrawn and would wet herself. The therapist diagnosed her with posttraumatic stress disorder

. Within six months, however, the therapist described her as " 'a completely different child,' " who had stopped wetting herself, was excited to play with friends, and was able to speak freely about her emotions. Id., at 212. When Montoya Alvarez and the child returned to the therapist after Lozano filed a petition for the child's return, the therapist noted that the child was doing well but did not wish to see her father.

In the meantime, Lozano attempted to find Montoya Alvarez and the child. Shortly after Montoya Alvarez left in November 2008, he called her sister Gloria in London, but eventually received legal advice not to speak with Montoya Alvarez' family. A mediation service also sent several letters to Montoya Alvarez on Lozano's behalf without receiving a response. In July 2009, Lozano filed an application for a court order in the United Kingdom " 'to ensure that he obtains regular contact with his [child] and plays an active role in [her] life.' " Id., at 210. He also sought court orders to compel Montoya Alvarez' sisters and legal counsel, the child's doctor and nursery, and various government offices in London to disclose the child's whereabouts.

On March 15, 2010, after determining that the child was not in the United Kingdom (and suspecting that the child was in New York), Lozano filed a form with the Hague Convention Central Authority for England and Wales seeking to have the child returned.2 The United States Central Authority—the Office of Children's Issues in the Department of State, see 22 CFR § 94.2 (2013)—received the application on March 23, 2010. After the Office of Children's Issues confirmed that Montoya Alvarez had entered the United States, Lozano located Montoya Alvarez' address in New York. On November 10, 2010, more than 16 months after Montoya Alvarez and the child left the United Kingdom, Lozano filed a Petition for Return of Child pursuant to the Hague Convention and ICARA, 42 U.S.C. § 11603, in the United States District Court for the Southern District of New York.

After a 2–day evidentiary hearing, the District Court denied Lozano's petition. 809 F.Supp.2d 197. The District Court concluded that Lozano had stated a prima facie case of wrongful removal under the Hague Convention. Id., at 219–220. Prior to her removal, the child was a habitual resident of the United Kingdom, see Hague Convention, Art. 4, and Lozano had custody rights that he was actually exercising at the time of removal, see Arts. 3(a)(b).

Because the petition was filed more than one year after the child's wrongful removal, however, the District Court denied the petition on the basis that the child was now settled in New York. Id ., at 230, 234."Viewing the totality of the circumstances," the court found sufficient indicia of "stability in her family, educational, social, and most importantly, home life," id., at 233, to conclude that the child...

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