Block on Trump's Asylum Ban Upheld by Supreme Court
Another year, another child abduction case in the Supreme Court.
This time, the issue is equitable tolling, or to put it in non-legal terms, whether a parent should benefit by hiding a kid away for more than the one-year period for presumptive return of the child.
Diana Montoya Alvarez absconded with her child, first to a battered women's shelter (there was a non-dispositive and disputed issue of abuse), then to France, then to the United States. Manual Lozano, the father, was unable to locate the child to initiate legal proceedings and seek a return until well after a year had passed.
Because of the inherent incentive to hide out for at least a year, Lozano argued that the one-year period should be tolled in cases of concealment, but the Supreme Court disagreed, holding unanimously that equitable tolling is not available.
Presumption of Equitable Tolling
Unlike the presumption with federal statutes' time limits, there is no general presumption that equitable tolling applies to treaties. For treaties, courts look to the "shared expectations of the contracting parties" and the background principles that underlie the treaty.
Here, there were no background principles that would indicate that tolling was appropriate. In fact, foreign courts, lacking a presumption of tolling, have held against the concept.
Not Really a Time "Limit"
At the one year mark, instead of near-automatic return of the child, the question becomes whether a child has become "settled" to the point where return would be harmful -- basically your run-of-the-mill "best interests of the child" standard.
To paraphrase Mohammed Ali, you can't sue what you can't see. Lozano, a native Columbian who met the child's mother, a fellow Columbian, in Britain, searched diligently, but it took two years to find his child in New York.
Think about that for a second: you have one year to search worldwide for your missing child and to file a court action.
Except, you have more than one year, as both the majority and concurrence point out. Justice Thomas' majority opinion notes that even if there was a presumption of equitable tolling, it only applies to statutes of limitations, not to soft deadlines. The remedy of return is still available here after one year -- it's just not presumed.
And Thomas didn't buy the arguments about an incentive to conceal, noting:
"Nor is it true that an abducting parent who conceals a child's whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child 'settled.'"
Examples provided in citations include holding the child out of school and community activities or moving frequently.
Alito: "Settled" Doesn't Settle It
Justice Alito, writing in a separate concurrence, emphasized that other parts of the convention allow courts to consider factors in addition to whether the child has settled, such as concealment, ties to the home country, and a need to discourage abductions generally.
Article 18 of the treaty explicitly states, "[t]he provisions of this Chapter [including Article 12] do not limit the power of a judicial or administrative authority to order the return of the child at any time." (emphasis added)
Alito refers to this as "equitable discretion" and notes that its flexibility is far more desirable than the rigidity that would come from an equitable tolling rule:
"Equitable tolling would require return every time the abducting parent conceals the child and thereby prevents the non-abducting parent from filing a return petition within a year, regardless of how settled in the new country the child has become. Thus, on petitioner's view, a court would be bound to return a 14-year-old child who was brought to the United States shortly after birth and had been concealed here ever since."