Lozano v. Alvarez

572 U.S. 1 (2014)

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Nature of the Case

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Facts

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.” Article 12 further provides that the court, “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.” M and F gave birth to a daughter in October 2005. F has stated that the couple were “‘very happy together,’” albeit with “normal couple problems.” M described a pattern of physical and emotional abuse that included multiple incidents of rape and battery. The District Court found insufficient evidence to make specific findings about domestic violence but determined that F’s claim that he never mistreated M was “not credible.” F stated that he and the child had a very good relationship and that the child was generally happy. M believed otherwise. In October 2008, F reported to the child’s doctor that she refused to speak at the nursery she attended, cried often, and wet the bed. M also stated that the child refused to speak when F 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 The child’s nursery manager wrote that the girl was “‘very withdrawn,’” and noted that the home “‘environment obviously had a negative effect’” on her. The District Court found insufficient evidence that F had physically abused the child, but did conclude that the child had seen and heard her parents arguing at home. In November 2008, when the child was just over three years old, M went to New York to visit her sister Maria. When M returned, she became acutely concerned about the child’s fearful behavior around F. The next day, M left with the child and never returned. They stayed at a women’s shelter for the next seven months. M and the child left for France on July 3, 2009, and then for the United States, arriving five days later. M and the child have lived with M's sister Maria and her family in New York. A therapist diagnosed the child 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 July 2009, F 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, F filed a form with the Hague Convention Central Authority for England and Wales seeking to have the child returned. The United States Central Authority-the Office of Children’s Issues in the Department of State, see 22 CFR §94.2 (2013)-received the application on March 23, 2010. On November 10, 2010, more than 16 months after M and the child left the United Kingdom, F filed a Petition for Return of Child pursuant to the Hague Convention and ICARA, 42 U. S. C. § 11603, in the United States District Court for the Southern District of New York. The District Court denied the petition. Because the petition was filed more than one year after the child’s wrongful removal, the District Court denied the petition because it found sufficient indicia of “stability in her family, educational, social, and most importantly, home life,” id., at 233, to conclude that the child was settled in her current environment and that repatriation would be “extremely disruptive.” F argued that the 1-year period in Article 12 should be equitably tolled during the period that M concealed the child. The court disagreed. The Appeals court affirmed. The Supreme Court granted certiorari.