Quest for Child's Return Will Go to Supreme Court
WASHINGTON (CN) - A mother who took her daughter from an allegedly abusive household in the U.K. is not in the clear yet, with the Supreme Court taking up her ex's case Monday.
While Diana Lucia Montoya Alvarez had been living with Manuel Jose Lozano in London, their daughter exhibited unusual behavior such as silence at the nursery, frequent crying, nightmares, and bed-wetting.
Alvarez left with the girl for the nursery one day in late 2008 and never returned. After spending seven months at a women's shelter, she and the 3-year-old moved to New York where they stayed with Alvarez's sister who is U.S. citizen.
Within several months, a therapist in New York diagnosed Alvarez's daughter with post-traumatic stress disorder but found that the girl's behavior improved throughout 2010.
After finally discovering that his daughter was living in New York that year, Lozano petitioned for her return under the International Child Abduction Remedies Act. He denies that he and Alvarez experienced anything more than "normal couple problems," but Alvarez testified that Lozano was abusive and raped her four times.
He also allegedly tried to kick Alvarez in the stomach when she was pregnant.
Alvarez's affirmative defense to the abduction petition relied on the idea that her child is "now settled" under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.
Lozano argued, however, that Alvarez could not this defense for one year since he could reasonably have learned about his child's whereabouts.
A federal judge in Manhattan refused, however, to toll the one-year period on that basis and denied Lozano's petition in 2011. The court did not reach the issue of whether Alvarez was abusive because the evidence was inconsistent.
Though the 2nd Circuit affirmed dismissal, the Supreme Court took up the tolling question on Monday.
Per its custom, it made no comment on the case. The couple's daughter turns 8 in October.