In Lozano v. Montoya Alvarez, decided March 5, 2014, the U.S. Supreme Court issued its third decision in five years interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). (1) The Hague Convention sets out a standard for determining when a child who has been wrongfully removed or retained in violation of a parent's custodial rights will be returned to his or her previous home. Article 12 provides that when "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," unless narrow exceptions specified elsewhere in the Convention apply. (2) The instructions shift if more than one year has passed; in that situation, the relevant judicial or administrative authority "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." (3) In Lozano, the Supreme Court held that these instructions regarding the first year are not subject to equitable tolling. (4)
The case concerns the daughter of Diana Lucia Montoya Alvarez and Manuel Jose Lozano. Until she turned three, the daughter and her parents lived in London. Asserting that she had been subject to emotional and physical abuse and expressing concern about her daughter, Montoya Alvarez left for a women's shelter, where she and her daughter lived for seven months. They then traveled to New York and moved in with Montoya Alvarez's sister Maria and her family. Lozano did not know where they had gone, and his initial attempts to locate Montoya Alvarez and his daughter were unsuccessful. Using procedures established by the Hague Convention, Lozano eventually learned that they were in the United States. Sixteen months after Montoya Alvarez and her daughter left the United Kingdom, Lozano filed a petition for return of the child pursuant to the Hague Convention. (5)
Lozano argued that the one-year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. That is, he argued that his daughter should be returned to the United Kingdom "forthwith" and that the U.S. court hearing his Hague Convention claim should not consider whether his daughter had "settled" in her "new environment," even though she had been away from the United Kingdom for more than one year. (6)
Writing for a unanimous Court, Justice Clarence Thomas explained that "[a]s a general matter, equitable tolling pauses the running of, or 'tolls,' a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." (7) When interpreting federal statutes of limitations, the Court continued, American courts presume that Congress intended to incorporate equitable tolling "because equitable tolling is part of the...