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Monday, July 22, 2024 | Back issues
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Dad Loses Bid for Daughter’s Return

(CN) - A woman who fled an allegedly abusive partner in London can keep their 8-year-old daughter in the United States, the Supreme Court ruled Wednesday.

Diana Lucia Montoya Alvarez claimed that the father of her child, Manual Jose Lozano, repeatedly beat and raped her while they lived together in London. He denied the abuse, claiming they had "normal couple problems" but were otherwise "very happy together."

Their daughter, however, refused to speak at her nursery, cried often and wet the bed, according to Montoya Alvarez.

In November 2008, Montoya Alvarez took their 3-year-old daughter and left. After spending seven months in a women's shelter, they moved to New York to live with Montoya Alvarez's sister.

A therapist in New York diagnosed the young girl with post-traumatic stress disorder, but noted that within six months she had become "a completely different child," excited to play with friends and able to speak freely.

More than 16 months after their move to New York, the girl's father petitioned for her return under the International Child Abduction Remedies Act.

If a parent files such a petition within a year of the child's abduction by the other parent, courts are typically required to order the return of the child under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.

But a federal judge in Manhattan denied the petition on the basis that the girl had been living in the United States for more than a year and was now settled, and repatriating her would be "extremely disruptive."

The court found "insufficient evidence" of domestic violence, but determined thatLozano's claim that he never mistreated Montoya Alvarez was "not credible."

Lozano argued on appeal that he was unable to file his petition sooner because Montoya Alvarez had concealed their location. He said the one-year period should not begin until he knew of their whereabouts, a legal concept known as "equitable tolling."

The 2nd Circuit affirmed the dismissal of Lozano's petition, and the high court agreed to take the case last June.

On Wednesday, it unanimously upheld the 2nd Circuit's decision.

"The Court of Appeals correctly concluded that the 1-year period in Article 12 of the Hague Convention is not subject to equitable tolling," Justice Clarence Thomas wrote.

He said the American law concept of equitable tolling does not apply to treaties. Even if it did, he added, "we have only applied that presumption to statutes of limitations."

"Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment," the court concluded.

Justice Samuel Alito wrote separately to explain how courts can still order a child's return even after the child has become settled, despite Article 12's one-year period.

"Even after a year has elapsed and the child has become settled in the new environment, a variety of factors may outweigh the child's interest in remaining in the new country," he explained, including "the child's need for contact with the non-abducting parent."

Equitable discretion by the courts is "a far better tool than equitable tolling with which to address the dangers of concealment," Alito wrote.

Justices Sonia Sotomayor and Stephen Breyer joined Alito's concurring opinion.

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