International Law and Immigration

Ca. Int'l Law Journal VOL. 23, NO. 1, SUMMER 2015

ALERT: The Supreme Court, Equitable Tolling And International Treaty Interpretation

By Laura B. Heiman*

To toll or not to toll? Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter "Hague Convention") generally requires that courts in signatory countries automatically return a child who is the subject of an international custody dispute to his or her home country if a requesting parent files suit within one year of the child’s removal.1 After one year, however, a court may refuse to order return if a taking parent demonstrates that "the child is now settled in its new environment."2 In Lozano v. Montoya-Alvarez, the Supreme Court was faced with the question of whether Article 12’s one-year time period is susceptible to equitable tolling when a taking parent conceals a child’s whereabouts.3 As discussed in this case alert, Lozano is instructive both for its answer to that question—equitable tolling is not available with respect to Article 124—and because it illustrates one of the select areas of Supreme Court jurisprudence (here, international treaty interpretation) in which all justices agree on the propriety of analyzing and relying on foreign law, an approach that divides the Court when interpreting the U.S. Constitution.5

In Lozano, a mother removed her three-year-old child from the home that they shared with the child’s father in London, and lived in a women’s shelter in the United Kingdom for seven months before moving to the United States to live with her sister in New York.6 Meanwhile, the child’s father attempted to locate them. Sixteen months after the mother and child left the United Kingdom, the father filed a petition in the United States District Court for the Southern District of New York seeking the child’s return under the Hague Convention.7 After an evidentiary hearing, the District Court denied the petition concluding that the child was now settled in New York and, on appeal, the Court of Appeals for the Second Circuit affirmed.8 The United States Supreme Court granted certiorari to determine whether the one-year period in Article 12 of the Hague Convention is subject to equitable tolling.9

Although Lozano involved a question of international treaty interpretation, the Court began its analysis of that question through the lens of U.S. law, explaining that the doctrine of equitable tolling is "a long-established feature of American jurisprudence" and one of the "common-law adjudicatory principles" against which Congress legislates.10 For that reason, the Court noted, courts in the United States "presume that equitable tolling applies" to federal statutes "if the [time] period in question is a statute of limitations and if tolling is consistent with the statute."11 The Court acknowledged, however, that it had to look beyond the "more familiar context"12 of domestic law in this case and consider equitable tolling from an international perspective in order to determine whether the Hague Convention’s signatory countries intended the doctrine of equitable tolling (or a similar principle) to apply to Article 12.13

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