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Lozano v. Alvarez: Equitable Tolling Doesn't Apply to Hague Treaty

By Gabriella Khorasanee, JD on March 10, 2014 | Last updated on March 21, 2019

Manuel Lozano and Diana Alvarez met in London, and the following year had a child together. The couple had the characteristic "he said/she said" version of their relationship; Alvarez characterized the time with instances of rape and violence, while Lozano characterized their time together as having "normal couple problems."

When their child was 3, she began exhibiting signs of distress, with her school nursery manager noting that she was "very withdrawn" and that "the home 'environment obviously had a negative effect' on her." As a result, Alvarez took the child to a women's shelter, where they remained for seven months. Thereafter, Alvarez took the child from the UK to France and then to New York, to live with Alvarez's sister.

Lozano tried to locate his child but was unsuccessful until 16 months later, when he filed a Petition for Return of Child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Treaty"), and the International Child Abduction Remedies Act ("ICARA"), the federal law enacted to implement the Treaty.

Lozano v. Alvarez -- The Lower Courts

The district court denied Lozano's petition, and the Second Circuit affirmed, holding "courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention." The Supreme Court granted certiorari to determine whether the one-year period in Article 12 is subject to equitable tolling.

Lozano v. Alvarez -- The Majority Opinion

Writing for a unanimous court, Justice Thomas held that "equitable tolling is not available" for Article 12 of the Treaty. First, Justice Thomas noted that equitable tolling is a concept used in U.S. laws and, "Unlike federal statutes of limitations, the Convention was not adopted against a shared background of equitable tolling."

Furthermore, he noted that the Treaty was not a statute of limitation; instead, the one-year period was designed for the benefit of a third party -- the child -- not the non-abducting parent filing a Petition for Return. By focusing solely on the intent of the drafters of the Treaty, Justice Thomas concluded that equitable tolling did not apply.

Lozano v. Alvarez -- The Concurring Opinion

Writing separately, Justice Alito concurred with Justices Breyer and Sotomayor joining him in his opinion. He wrote distinctly to elaborate on why courts may have discretion to return a child, even if the child has "become settled." He explains that the court's discretion, pursuant to Article 18, to return a child -- even in the absence of equitable tolling -- would not "[encourage] parents to flee to the United States and conceal their children here." Instead, he stated, "Given the courts' discretion to order return in response to concealment, I do not believe the Court's decision today risks incentivizing parents to flee with their children to this country and conceal them."

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