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Second Circuit Considers 'Now Settled' Defense in Custody Case

By Robyn Hagan Cain on October 01, 2012 | Last updated on March 21, 2019

The Second Circuit Court of Appeals made it harder for foreign parents to win an international custody dispute in federal courts this week.

Diana Lucia Montoya Alvarez and Manuel Jose Lozano, two now-separated parents, disputed whether courts in the United States or the United Kingdom should decide who has custody of their five-year-old child. To resolve the case, the Second Circuit Court of Appeals answered two questions of first impression regarding the interpretation of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction: (1) whether the "now settled" defense to the return of an abducted child is subject to equitable tolling; and (2) whether a child who lacks legal immigration status in the United States can be found to be settled within the meaning of the Convention.

Alvarez and Lozano lived together in London with their daughter, though they were never married. Lozano acknowledged that he and Alavarez had "normal couple problems," but claims that they were generally "very happy together." Alvarez asserts that Lozano "treated her badly," prompting her to flee their shared home with the child in 2008.

For seven months, Alvarez and the child resided at a women's shelter in the U.K. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they have lived since that time. On November 10, 2010, Lozano filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act, requesting an order requiring that the child be returned to London to have a British court make a custody determination.

While the district court found that Lozano made a prima facie case of wrongful retention under the Hague Convention, it denied Lozano's petition based on Alvarez's affirmative defense that the child was "now settled" in New York.

On appeal, Lozano argued that the district court erred in permitting Alvarez to raise the now settled defense because the one-year period in Article 12 should have been equitably tolled until he could have reasonably located his child. Lozano also claimed that the district court erred in finding that the child was settled in New York, despite the fact that neither the child nor Alvarez have legal immigration status.

Article 12 states:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

Here, the Second Circuit held that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status.

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