Lozano v. Montoya Alvarez

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Alvarez and Lozano lived with their daughter in London until November 2008, when Alvarez and the child moved to a women’s shelter. In July 2009, they left the U.K., ultimately settling in New York. Lozano did not locate them until November 2010. He filed a Petition for Return of Child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, if a parent files a petition within one year of the child’s removal, a court “shall order the return of the child forthwith.” When the petition is filed after that period, the court is to order return, “unless it is demonstrated that the child is now settled in its new environment.” Because it was filed more than one year after removal, the district court denied the petition, finding that the child was now settled. The Second Circuit and Supreme Court affirmed. There is no presumption that equitable tolling applies to treaties and the parties to the Convention did not intend that it apply to the one-year period. The International Child Abduction Remedies Act, 42 U. S. C. 11601–11610, enacted to implement the Convention, neither addresses equitable tolling nor purports to alter the Convention and, therefore, does not affect this conclusion. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the one-year period is not a statute of limitations. The remedy available to the left-behind parent continues to be available after one year; expiration of one year simply mandates consideration of a third party’s interests. The drafters did not choose to delay the period’s commencement until discovery of the child’s location. View "Lozano v. Montoya Alvarez" on Justia Law