As reported last week in The Hufington Post by Law Professor Margaret Ryznar:
“On December 11, 2013, the United States Supreme Court will hear oral arguments in Lozano v. Alvarez, a case arising under the Hague Convention on the Civil Aspects of International Child Abduction. This is the second consecutive year that that the United States Supreme Court is considering the provisions in this Convention: last term, the Court decided Chafin v. Chafin, 133 S.Ct. 1017 (2013), holding that the jurisdiction of American appellate courts does not end when the child has been returned to another country.”
At issue in Lozano is a conflict among the Circuit Courts in the United States as to whether the 1 year limitation for filing a Petition for the return of a child can be tolled when the Respondent has hidden the location of the abducted child from the Petitioner.
The Second Circuit decision, from which the Lozano appeal is taken, explains its refusal to toll the 1 year limitation as follows:
” Put differently, “if more than one year has passed, a ‘demonstra[tion] that the child is now settled in its new environment’ may be a sufficient ground for refusing to order repatriation.” Id.10 Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. See Lozano, 809 F.Supp.2d at 227–28 (reasoning that the one-year period in Article 12 is not analogous to a statute of limitations); Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *12 (S.D.N.Y. Aug. 31, 2007) (same); Anderson v. Acree, 250 F.Supp.2d 872, 875 (S.D.Ohio 2002) (same); Toren v. Toren, 26 F.Supp.2d 240, 244 (D.Mass.1998) (same), vacated on other grounds,191 F.3d 23 (1st Cir.1999).”