U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Lozano v. Alvarez: Custody Dispute Raises Issues of 1st Impression

For anyone who is a parent, one of the most frightening things always in the back of our minds is child abduction. But, what happens when the abductor is the child's other parent? And, what if she takes your child out of the country?

This term, the Supreme Court will interpret the Hague Convention on the Civil Aspects of International Child Abduction -- and will determine whether the "now settled" defense is subject to equitable tolling.

Lozano v. Alvarez -- Background

Manuel Lozano and Diana Alvarez, had a child, but never married, while living in London. The couple's characterization of the relationship varied with Lozano stating they had "normal couple problems," and Alvarez stated that he "treat[ed] her badly," alleging, among other things, violence and rape.

When the child was three, she was having issues at school and her pediatrician surmised "that the 'home environment obviously had a negative effect upon [her].'" Shortly afterward, Diana took the child and went to a women's shelter where they lived for seven months. She then took the child to New York, to live with her sister in July of 2009.

Though Lozano made attempts to locate his child, he did not file a petition for 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") until November 10, 2010. The district court denied his petition.

Lozano v. Alvarez -- Legal Analysis

On appeal, the Second Circuit had to determine whether equitable tolling should be applied to the "now settled" defense. The court held, "courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention."

Several organizations filed amicus briefs in this case and sides taken are quite interesting. While the U.S. government supports the Second Circuit's decision, many organizations devoted to the cause of missing children or family law ask for reversal. One of the main arguments is that by not allowing equitable tolling, the courts have created an incentive for the abducting parent to conceal the whereabouts of the child.

Though by no means indicative, it is interesting to note that English courts have rejected the concept of equitable tolling, so it will be interesting to see if the Supreme Court agrees, or not.

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