Lozano v. Alvarez
June 24, 2013
Case #: 12-820
697 F.3d 41 (2d Cir. 2012)
Full Text Opinion: http://www.ca2.uscourts.gov/decisions/isysquery/32a8f339-c57e-4f38-b1b6-336601fb5a3b/3/doc/11-2224_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/32a8f339-c57e-4f38-b1b6-336601fb5a3b/3/hilite/
Constitutional Law: Whether the one-year filing period of the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11603 (2005) begins from the date of wrongful removal or tolled until the petitioning parent discovers the abducted child's whereabouts.
Petitioner and Respondent raised their child together until Respondent and child moved to the United States. Upon discovering that the child and Respondent were in the United States, Petitioner filed a Petition for Return of Child pursuant to Article 12 of the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11603 (2005) (ICARA). Petitioner requested an order requiring the child to be returned to the United Kingdom and for a British court to make a custody determination.
Petitioner argues that when the abducting parent conceals the whereabouts of a child, the filing period should be tolled until the whereabouts are discovered by the petitioner. The district court held and Court of Appeals affirmed that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under ICARA,because Article 12 expressly states that the the one-year period starts "from the date of the wrongful removal or retention."Petitioner filed petition for certiorari, arguing that the court should address the split of authority among the circuits on the interpretation of tolling in ICARA and that tolling is necessary for ICARA to be effective. The Supreme Court granted certiorari on the question of tolling.