Last week, the United States Supreme Court heard oral arguments in the case of Lozano v. Alvarez.

The case involves a provision of the Hague Convention on the Civil Aspects of International Child Abduction.  Generally speaking, the Convention provides that children taken from their “habitual country of residence” are to be (almost) automatically returned to that country so long as the return is sought within one year. (After a one-year period, return is still possible, but additional factors may be considered.)  The question for the Supreme Court in Lozano is how to measure that one-year period.

SCOTUS Blog provides a summary of the relevant facts:

The estranged parents in this case, Diana Montoya Alvarez and Manuel Lozano, are both Colombian nationals who immigrated to England, where their daughter was born in 2005.  In 2008, Alvarez left their home with their daughter; the pair stayed in a shelter for victims of domestic violence for several months before traveling to France and then to New York, where Alvarez has family.  Once in New York, the pair lived with Alvarez’s sister, and Alvarez enrolled her daughter in school under her own name.  Although the lower court described Lozano as “remarkably diligent” in trying to locate his daughter, he did not confirm that she was in the United States until October 2010; shortly thereafter, he filed a petition in federal district court, seeking the child’s return to the United Kingdom.

The second circuit refused to extend the one-year period on equitable grounds, and on appeal, Lozano argues that the court should toll the one-year period where Alvarez concealed the child’s whereabouts. In response, Alvarez and the United States Government (which has filed an amicus brief in support of Alvarez’s position), argue that nothing in the Hague Treaty suggests that the one-year period is subject to extension.

Notably, the Second Circuit isn’t alone in refusing to extend the one-year period for near-automatic return.  While Lozano has been pending before the Supreme Court, the First Circuit also denied a party’s request to extend the one-year period on equitable grounds in its decision in Yaman v. Yaman.

As an aside, it’s been a busy few months for Hague cases, with a recent decision from the 9th circuit in Valenzuela v. Michel holding the Hague Convention cannot be used to seek return of a child who has simply “overstayed” his/her time with a custodial parent in the United States.  As Judge Noonan’s survey of international law made clear, where parents agree to share custody across international borders, the Hague may not provide a ready mechanism for return.

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