Lozano v. Montoya Alvarez
Lozano v. Montoya Alvarez
Opinion
*4 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.
I
To address "the problem of international child abductions during domestic disputes,"
Abbott v. Abbott,
To those ends, the Convention's "central operating feature" is the return of the child.
Abbott,
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."
"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.
*6
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).
II
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,
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
*7
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
*1230
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.
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.
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.' "
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
After a 2-day evidentiary hearing, the District Court denied Lozano's petition.
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,"
On appeal, the Second Circuit affirmed.
We granted certiorari to decide whether Article 12's 1-year period is subject to equitable tolling. 570 U.S. ----,
III
Although this case concerns the application of equitable tolling to a treaty, we begin with a more familiar context: equitable tolling of federal statutes of limitations. As a general matter, equitable tolling pauses the running of, or "tolls," a statute of limitations when a litigant has pursued
*1232
his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. See,
e.g.,
Pace v. DiGuglielmo,
As applied to federal statutes of limitations, the inquiry begins with the understanding that Congress "legislate[s] against a background of common-law adjudicatory principles."
Astoria Fed. Sav. & Loan Assn. v. Solimino,
IV
The Hague Convention, of course, is a treaty, not a federal statute. For treaties, which are primarily " 'compact[s] between independent nations,' "
Medellín v. Texas,
We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12. Unlike federal statutes of limitations, the Convention was not adopted against a shared background of equitable tolling. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the 1-year period in Article 12 is not a statute of limitations. And absent a presumption in favor of equitable tolling, nothing in the Convention warrants tolling the 1-year period.
A
First, there is no general presumption that equitable tolling applies to treaties. Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established backdrop of American law.
Rotella v. Wood,
It is particularly inappropriate to deploy this background principle of American law automatically when interpreting a treaty. "A treaty is in its nature
*1233
a contract between ... nations, not a legislative act."
Foster v. Neilson,
Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, "foreign courts have failed to adopt equitable tolling ... because they lac[k] the presumption that we [have]." Tr. of Oral Arg. 19-20. While no signatory state's court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling. See
Cannon v. Cannon,
[2004] EWCA (Civ) 1330, [2005] 1 W.L.R. 32, ¶ 51 (Eng.), (rejecting the "tolling rule" as "too crude an approach" for the Convention);
Kubera v. Kubera,
3 B.C.L.R. (5th) 121, ¶ 64, 317 D.L.R. (4th) 307, ¶ 64 (2010) (Can.) (equitable tolling "has not
*13
been adopted in other jurisdictions, including Canada"); see also
HJ v. Secretary for Justice,
[2006] NZFLR 1005, ¶ 53 (CA), appeal dism'd on other grounds, [2007] 2 NZLR 289 ;
A.C. v. P.C.,
[2005] HKEC 839,
It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA,
B
Even if the presumption in favor of equitable tolling had force outside of domestic law, we have only applied that presumption
*14
to statutes of limitations. See
Hallstrom v. Tillamook County,
As a general matter, "[s]tatutes of limitations establish the period of time within which a claimant must bring an action."
Heimeshoff v. Hartford Life & Accident Ins. Co.,
571 U.S. ----, ----,
In
Young,
Unlike the 3-year lookback period in
Young
, expiration of the 1-year period in Article 12 does not eliminate the remedy the Convention affords the left-behind parent-namely, the return of the child. Before one year has elapsed, Article 12 provides that the court "shall order the return of the child
*15
forthwith." Treaty Doc., at 9. But even after that period has expired, the court "shall also order the return of the child, unless it is demonstrated that the child is now settled."
C
Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides that the 1-year period
*16
commences on "the date of the wrongful removal or retention," and makes no provision for an extension of that period.
Id.,
at 9. Further, the practical effect of the tolling that Lozano requests would be to delay the commencement of the 1-year period until the left-behind parent discovers the child's location. Commencing the 1-year period upon discovery is the obvious alternative to the commencement date the drafters actually adopted because the subject of the Hague Convention, child abduction, is naturally associated with the sort of concealment that might justify equitable tolling under other circumstances. See
Lozano contends that equitable tolling is nevertheless consistent with the purpose of the Hague Convention because it is necessary to deter child abductions. In his view, "absent equitable tolling, concealment 'probably will' result in non-return," which will in turn encourage abduction. Reply Brief 14-15; see also
Duarte,
We agree, of course, that the Convention reflects a design to discourage child abduction. But the Convention does not pursue that goal at any cost. The child's interest in choosing to remain, Art. 13, or in avoiding physical or psychological harm, Art. 13(b), may overcome the return remedy. The same is true of the child's interest in settlement. See
supra,
at 2; see also
In re M,
[2008] 1 A.C. 1288, 1310 (Eng. 2007) (opinion of Baroness Hale of Richmond) ("These children should not be made to suffer for the sake of general deterrence
*17
of the evil of child abduction world wide"). We are unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty. See
Chan v. Korean Air Lines, Ltd.,
Nor is it true that an abducting parent who conceals a child's whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child "settled." See,
e.g.,
Mendez Lynch v. Mendez Lynch,
D
Finally, Lozano contends that the Hague Convention leaves room for United States courts to apply their own "common law doctrine of equitable tolling" to the 1-year period in Article 12 without regard to whether the drafters of *18 the Convention intended equitable tolling to apply. Brief for Petitioner 25. Specifically, Lozano contends that the Convention recognizes additional sources of law that permit signatory states to return abducted children even when return is not available or required pursuant to the Convention. Article 34 of the Convention provides that "for the purpos[e] of obtaining the return of a child," the Convention "shall not restrict the application of an international instrument in force between the State of origin and the State addressed" or the application of "other law of the State addressed." Treaty Doc., at 13; see also Art. 18, id., at 11 ("The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time"). In Lozano's view, equitable tolling principles constitute "other law" that should apply here.
That contention mistakes the nature of equitable tolling as this Court has applied it. We do not apply equitable tolling as a matter of some independent authority to reconsider the fairness of legislative judgments balancing the needs for relief and repose. See
supra,
at 7-8. To the contrary, we may apply equitable tolling to the Hague Convention only if we determine that the treaty drafters so intended. See
Choctaw Nation,
V
The Court of Appeals correctly concluded that the 1-year period in Article 12 of the Hague Convention is not subject to equitable tolling. We therefore affirm that court's judgment.
It is so ordered.
Justice ALITO, with whom Justice BREYER and Justice SOTOMAYOR join, concurring.
I concur fully in the opinion of the Court. I write separately to explain why *1237 courts have equitable discretion under the Hague Convention to order a child's return even after *19 the child has become settled, and how that discretion prevents abuses that petitioner claims will follow from holding that Article 12's 1-year period may not be equitably tolled.
The Convention is designed to protect the interests of children and their parents. Much of the Convention can be understood as an attempt to balance the various interests of children and non-abducting parents when a parent abducts a child from the child's country of habitual residence.
When a child has been absent from the country of habitual residence for less than a year, the Convention conclusively presumes that the child's nascent attachment to the new country is outweighed by the non-abducting parent's interest in prompt return and the child's own interest in returning to the country from which he or she was removed just a few months previously. This is why Article 12 requires return "forthwith" if the petition for return is brought within a year of abduction, unless one of the narrow exceptions set forth in Article 13 or 20 applies. Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11 (Treaty Doc.), p. 9. But, as the Convention recognizes, at some point the child will become accustomed to the new environment, making Article 12's conclusive presumption inappropriate. Thus, if the petition for return is brought after a year has elapsed, the court must determine whether the child has become "settled" in the new country; and if this has occurred, the court need not order return.
But opening the door to consideration of the child's attachment to the new country does not mean closing the door to evaluating all other interests of the child and the non-abducting parent. The fact that, after one year, a child's need for stability requires a court to take into account the child's attachment to the new country does not mean that such attachment *20 becomes the only factor worth considering when evaluating a petition for return.
Nothing in Article 12 prohibits courts from taking other factors into account. To the contrary, the Convention explicitly permits them to do so. Article 18 provides that "[t]he provisions of this Chapter [including Article 12] do not limit the power of a judicial or administrative authority to order the return of the child at any time." Hague Convention, Treaty Doc., at 11. A court thus has power to order the child's return in the exercise of its sound discretion even where Article 12's obligation to order such return no longer applies.
This provision makes eminent sense. Even after a year has elapsed and the child has become settled in the new environment, a variety of factors may outweigh the child's interest in remaining in the new country, such as the child's interest in returning to his or her original country of residence (with which he or she may still have close ties, despite having become settled in the new country); the child's need for contact with the non-abducting parent, who was exercising custody when the abduction occurred; the non-abducting parent's interest in exercising the custody to which he or she is legally entitled; the need to discourage inequitable conduct (such as concealment) by abducting parents; and the need to deter international abductions generally.
Article 12 places no limit on Article 18's grant of discretionary power to order return. Article 18 expressly states as much.
id="p1238" href="#p1238" data-label="1238" data-citation-index="1" class="page-label">*1238
Reading the Convention to impose a prohibition on return would be highly anomalous, given that 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."
Abbott v. Abbott,
The State Department has adopted the view that the Convention empowers a court, in its equitable discretion, to return a child who has become settled. In the analysis that it
*22
provided to the Senate in connection with the ratification process, the Department made clear that, even when a year has elapsed and the child has become settled, a court may still consider such factors as "evidence ... concerning the child's contacts with and ties to his or her State of habitual residence," "[t]he reason for the passage of time," and any concealment by the abducting parent in determining whether to order return. Hague International Child Abduction Convention; Text and Legal Analysis (State Legal Analysis),
So, too, is the interpretation of the courts of our sister signatories. See
Abbott,
*1239
Given the foregoing, it is perhaps unsurprising that the Courts of Appeals to have considered the question have found that a court possesses equitable discretion to order return of a child despite the child's having become settled in the new country. See
Yaman v. Yaman,
*23
And other Courts of Appeals have found more generally that none of the Convention's exceptions prohibit return. See,
e.g.,
Asvesta v. Petroutsas,
Equitable discretion to order return of a settled child is particularly important in light of the fact that the Convention, as the Court correctly holds today, does not provide for equitable tolling of Article 12's 1-year period. Petitioner predicts dire consequences from the Court's holding. He argues that, as a result of our decision, the United States will become an abduction haven, with parents concealing their children here until Article 12's 1-year period has run and then claiming their children have become settled and hence ineligible for return. But such inequitable conduct would weigh heavily in favor of returning a child even if she has become settled. See,
e.g.,
State Legal Analysis,
Equitable discretion is also a far better tool than equitable tolling with which to address the dangers of concealment. Equitable tolling would require return every time the abducting parent conceals the child and thereby prevents the non-abducting parent from filing a return petition within a year, regardless of how settled in the new country the child has become. Thus, on petitioner's view, a court would be bound to return a 14-year-old child who was brought to the *24 United States shortly after birth and had been concealed here ever since. By contrast, when a court exercises its equitable discretion, it may consider other factors in addition to concealment. While concealment is a significant factor and should weigh heavily in a court's analysis, in appropriate cases it can be overcome by circumstances such as the extended length of the child's residence in this country, any strong ties the child has formed here, and the child's attenuated connections to his or her former country. *1240 In short, I believe the power of a court, in the exercise of its sound discretion, to return even a settled child prevents the inapplicability of equitable tolling to Article 12's 1-year limit from encouraging parents to flee to the United States and conceal their children here. In light of this understanding, I have no difficulty joining the opinion of the Court.
Except where otherwise noted, the facts are taken from the District Court's findings. Like the courts below, we refer to Montoya Alvarez and Lozano's daughter as "the child" to protect her identity.
Article 6 of the Hague Convention requires each Contracting State to "designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities." Treaty Doc., at 8.
The District Court held in the alternative that even if equitable tolling could apply, it would not be warranted in this case because Lozano had contact information for Montoya Alvarez' sister Maria in New York. Lozano's solicitors did not attempt to contact Maria to determine if Montoya Alvarez and the child were there.
Consistent with Second Circuit precedent, see
Blondin v. Dubois,
Lozano contends that a single-judge decision by an English family court adopted equitable tolling without referring to it by name. See In re H, [2000] 2 F.L.R. 51, [2000] 3 F.C.R. 404 (Eng.). It is unclear whether the logic of that decision survived the decision of the Court of Appeals for England and Wales in Cannon .
In the State Department's view, the Hague Convention confers equitable discretion on courts to order the return of a child even if the court determines that the child is "settled" within the meaning of Article 12. See Brief for United States as Amicus Curiae 19-25. If accurate, that interpretation would reinforce that Article 12 is not meant to provide repose to the abducting parent, and it would underscore that the 1-year period is not a statute of limitations. But we do not decide whether, and under what circumstances, a court may exercise discretion to order return notwithstanding the child's subsequent settlement. In the Court of Appeals, Lozano failed to challenge the District Court's decision not to exercise its discretion to order the return of the settled child, see n. 3, supra, and that issue is beyond the scope of the question presented before this Court.
Lozano argues that the United States delegation referred to the 1-year period as a "statute of limitations" at various points during and after the drafting process. Brief for Petitioner 27-28. Because the determination whether the 1-year period is a statute of limitations depends on its functional characteristics, it is not significant that the delegation used that label. In any event, we doubt that the remarks of a single delegation are sufficient under these circumstances to establish the " 'shared expectations of the contracting parties.' "
Olympic Airways v. Husain,
Reference
- Full Case Name
- Manuel Jose LOZANO, Petitioner v. Diana Lucia MONTOYA ALVAREZ.
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- 466 cases
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- Published