Law Offices of Edwin Freedman

In the Supreme Court of the United States
No. 12-820
MANUEL JOSE LOZANO, PETITIONER
v.
DIANA LUCIA MONTOYA ALVARIEZ, RESPONDENT
            ON  WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

 
                                BRIEF FOR THE INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS (IAML) AS AMICUS CURIAE

QUESTION PRESENTED

The Hague Convention on Civil Aspects of International Child Abduction (the “Convention”), which the United States implemented by enacting the International Child Abduction Remedies Act (ICARA), provides in Article 12 that the courts of a requested state must order the return of a child who has been wrongfully removed or retained where a period of less than one year has elapsed from the date of the wrongful act. When return proceedings are commenced after the expiration of the one year period, Article 12 provides that the courts shall also order the return of the child, “unless  it is demonstrated that the child is now settled in its new environment”. Where a child has been unlawfully removed or retained and concealed from the left behind parent in a country other than the child’s habitual residence, does the implementation of the Convention’s declared goals require that equitable tolling be applied for the period during which the child was concealed?

STATEMENT OF FACTS

The International Academy of Matrimonial Lawyers (IAML) (1) adopts the facts as they are stated in the Petitioner’s brief

                                                                    INTEREST OF THE IAML 

          The IAML was formed in 1986 to improve the practice of law and the administration of justice in the area of divorce and family law throughout the world.  The IAML currently has some 620 “Fellows” in 45 countries, each of whom is recognized by the bench and bar in his or her country as an experienced and skilled family law lawyer. (2) It is a worldwide association of practicing lawyers who are experienced and skilled family law specialists in their respective countries.

IAML has made presentations in the US and in other Fellows’ States in relation to legal reforms. The IAML has sent its representatives to participate in relevant international conferences, often as non-governmental experts,  including the six Special Commissions on the Hague Convention on the Civil Aspects of International Child Abduction( hereinafter;  the Convention). Its Fellows have also written and lectured widely on the Convention and related topics, such as proceedings to obtain court approved relocation of children to another country.

IAML’s interest in the instant case relates to its concern that the implementation of the  Convention, which has significantly reduced the harmful effects of international child abduction, will be severely undermined if the judgment of the Second Circuit in this matter is affirmed. Many Convention cases are brought to court in the signatory States by IAML Fellows. The IAML, therefore, has a strong professional interest in preserving the deterrent effect of the Convention and ensuring the prompt return of wrongfully removed or retained children to their habitual residence.

The IAML is acting pro bono in submitting this brief.

                                                    SUMMARY OF ARGUMENT

The purpose of the Convention is to return a child who has been wrongfully removed or retained to its country of habitual residence as swiftly as possible. The Convention does not permit the litigation of custody matters within its parameters. It is an instrument to determine the appropriate forum to litigate matters of custody and the best interests of the child. Determinations of legal and physical custody, parenting time, and child support are intentionally beyond the scope of the Convention. (3)

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1. Pursuant to Supreme Court Rule 37.6  counsel for the amici certify that no counsel for a party authored any part of this brief and no person or entity other than counsel for the      amici has made a monetary contribution to the preparation or submission of this brief. The parties’ consents have been filed.
2. The IAML website, www.iaml.org, contains, among other items, a listing of its Fellows.
3. When ratification of the Convention was being considered by the U.S. Senate and implementing legislation was being considered by the U.S. Congress, the Federal Court made it clear it  did not want any such legislation to permit parties to litigate their  family law issues in the U.S. District Courts.

Article 6 of the Convention establishes a system of Central Authorities in each contracting State. Each Central Authority is charged with carrying out the duties imposed on the states and their political subdivisions in order to implement the Convention. Among those duties are the obligation to discover the whereabouts of a child who has been wrongfully removed or retained; to provide information of a general character as to the law of the their State in connection with the application of the Convention; and to initiate or facilitate the judicial or administrative proceedings needed to consider the return of the child.

Article 11 of the Convention provides that if the judicial or administrative body has not reached a decision within 6 weeks from the date of the commencement of the proceedings, the Central Authority of the requesting State shall have the right to request a statement of the reasons for the delay from the requested State. Some contracting States, in its implementing legislation, mandate their courts to decide such cases within the six week period, (See for example, Civil Regulations of 1984-5744, Regulation 295 (13), Israel). (3) The Convention does not define what precisely constitutes the commencement of the proceedings. It avoids the term “filing of action”, thus leaving it to the interpretation of the courts in each jurisdiction.

The courts in most jurisdictions have interpreted “commencement of proceedings” as filing an action in a court. However, a minority of courts have held that filing a petition with the Central Authority constitutes the commencement of proceedings.

Some of the minority view jurisdictions, such as California and Australia, commence the legal action on behalf of the petitioner. Thus, once a petition has been filed with the Central Authority in those jurisdictions, the left behind parent has commenced proceedings to the extent which he/she can.

The first paragraph of Article 12 provides that when a period of less than one year has elapsed from the date of the wrongful removal or retention at the time of the commencement of the proceedings, the authority concerned shall order the return of the child forthwith, barring the proof of a recognized defense. Where the proceedings have been commenced after the expiration of the one year period, the authorities shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment. The significance of the one year period thus has enormous consequences on the nature of the proceeding and its likely outcome. Determining whether the child has acclimated to its new surroundings necessarily entails precisely the kind of inquiry which Convention proceedings are not meant to undertake; an evaluation of the best interests of the child. While the one year period does not constitute a bar on commencing an action, it does fundamentally change the scope of the proceedings, significantly altering their nature, length of time and reduces the probability that a return will be ordered. Therefore, the argument that the one year period is not a statute of limitations is thus wholly unresponsive to the consequences of Article 12. Since Article 12 has been treated as a statute of limitations, equitable tolling should apply as it would to any Federal law containing a statute of limitations.

If by concealing the location of the wrongfully removed or retained child, the abducting parent succeeds in preventing the timely commencement of a proceeding, they are given an enormous advantage in an action for return of the child. If the time during which the abducted child is hidden is not tolled, the purpose of the Convention is severely undermined. Not only would the deterrent factor be vitiated, it would in fact encourage parents who contemplate abduction to also conceal the child in order to insure a successful defense to a return petition. Thus, the failure to implement a tolling of the one year period would be the equivalent of telling the abducting parent that their unlawful actions will likely be successful if they commit yet another wrongful and heinous act: concealment of the child.

The consequences of invoking Article 12 relate only to the date proceedings are commenced. There are no legal consequences where the proceedings do not conclude within a year. Thus, when the left behind parent has acted in a timely fashion, but the court, for no reason which is attributable to the petitioner, does not render a judgment within a year, as unfortunately is often the case, there is no invocation of the settled into its environment test. The courts focus is not a principled belief that after a certain length of time, broader factors should be weighed before making a return order. Rather the emphasis is on the timely action of the left behind parent. Courts do not permit the abducting parent who deliberately delays proceedings for more than a year to invoke the settled into the new environment defense. Why then, should the abducting parent be able to invoke that defense by preventing the left behind parent from discovering the child’s whereabouts?

The IAML believes that the destructive consequences of child abduction, which is a form of child abuse, are compounded by not tolling the period during which the whereabouts of the child are unknown. A reasonable solution can be adopted from  the more recent 1996 Hague Convention on Jurisdiction and Protection of Children (Child Protection Convention)  which provides a rational and simple formula in establishing jurisdiction in child custody disputes. Article 7(b) of the Child Protection Convention provides that in the case of wrongful removal or retention, jurisdiction passes to the new State where the child resided in that new state for at least one year after the left behind parent has or should have had knowledge of the whereabouts of the child and no request was timely filed and the child is now settled in the new State.

A further simplification of this issue can be made by adopting the position that where the child’s whereabouts are unknown, the filing of an application with the Central Authority of the child’s habitual residence will be considered the commencement of proceedings for purposes of Article 12. This will enable the left behind parent to take action within the specified period if he/she wishes to bring about the return of the child and it will simultaneously discourage the abducting parent to seek an advantage by hiding the child.

ARGUMENT

1. I.    THE ONE YEAR FILING PERIOD OF ARTICLE  12  OF THE CONVENTION IS EQUIVALENT TO A STATUTE OF LIMITATIONS.

          Article 12 provides that the child may be returned even if the petition is filed after one year, unless (emphasis not in original), the settled in its new environment defense is established. Unlike the provisions of Article 13b of the Convention, there is no express discretion to order a return if the child is now settled in its new environment. The discretion to return provision precedes the settled in its new environment exception in the article. Thus, there is no express discretion to order the return if the child is now settled in its new environment where the petition was filed after the one year period. While most courts have inferred a discretion to return, there is no clear mandate to do so in the Convention. See Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, House of Lords, minority opinion of Lord Rodger. (4) Even where such discretion is inferred, the one year period severely limits the left behind parent’s chances of succeeding in the petition for return and often becomes a de facto statute of limitations.

The opinion of the Second Circuit in this matter, reported at 697 F.3d 41, holds that “Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering the child to be returned to her country of habitual residency”, (page 14 of the judgment).  It is not the court’s authority to order a return after the one year period which should considered. What must be considered is the likelihood of successful implementation of the substantive right of return when a well settled defense is permitted.

In addition to the argument that the Convention does not provide the courts with a clear mandate of discretion, in practice, the possibility that an order of return will be made in such cases is significantly diminished. As stated in the petition for certiorari, only two courts in published decisions have ever ordered the return of a child after making a well-settled finding. See p. 22 of the Petition for Writ of Certiorari. The courts in other signatory States have taken a similar approach. In addition to the above cited Re M., courts in member States routinely refuse the return of unlawfully removed children when the petition is filed more than one year after the removal or unlawful retention. In practice, the failure to toll the one year period is most often outcome determinative.

By way of one example, the Appellate Court of Paris, France denied a return where a petition was filed sixteen months after an unlawful removal. The court held that in a conflict between the Convention’s purpose and the greater interest of the child, the Convention’s purpose takes second place. See CA Paris, 8 Aout 2008, Nos de RG 08/05791 et 08/07826. (5) The Supreme Court of Ireland issued a judgment not to return where the petition was filed by the public prosecutor 20 months after the unlawful removal but within one year after discovery of the child’s location. Although the removal was unlawful, the child had become settled in its new environment. P. v. B. (No. 2), (Child Abduction: Delay)[1999] 4 IR 185. (6)  The Supreme Court of New Zealand ruled in a case where the children were unilaterally removed from Australia by the mother in February, 2002. The father was notified of the children’s location in May, 2003 and commenced return proceedings in December of that year. The Supreme Court upheld the lower court’s refusal to order their return, accepting the argument that they were now settled in their new environment. Secretary for Justice (NZCA) v. H.J. [2007] 2 NZLR 289. (7)  In a case where a child was abducted to England from the U.S., the parents reached an agreement in 1999 to return the child to its habitual residence. However, the abducting mother then removed the child, who was only located in 2003. The court refused the petition for return based on its finding that the child was settled in her new environment. The court noted that her emotional life was not complete, being out of contact with her father, but that did not mean that she was not settled in her new environment. Re C (Abduction Settlement) [2005] 1 FLR 938. (8) Although it is beyond the scope of the Convention, one cannot completely ignore the consequences of the failure to apply equitable tolling for the future relationship between the left behind parent and the child. The post-judgment prospects in a case such as Re C for the left behind parent to re-establish contact with the child are very slim. An abducting parent, who is permitted to conceal the child without suffering any legal consequences, will have no incentive to abide by any court ordered visitation schedule. As noted by the U.S. Supreme Court, “Abductions may prevent the child from forming a relationship with the left-behind parent, impairing the child’s ability to mature”. Abbott v. Abbott , 130 S.Ct. 1983, Part III, end of par. D.

While courts in other signatory states have not adopted equitable tolling, some have fashioned other responses to concealment, such as a heightened burden of proof where the settled in defense is claimed. See for example, Cannon v. Cannon, [2005] 1 W.L.R. 32, (England). In the United States, the overwhelming majority of federal appellate and district courts have applied equitable tolling in cases where the abducting parent concealed the child’s location, as in the present case. See, e.g. Furness v. Reeves, 362 F.3d 702,723(11^th Cir. 2004), Dietz v. Dietz, 349 Fed. Appx. 930, 933 (5^th Cir. 2009), In re B. Del C.S.B., 559 F.3d 999, 1014-15 (9^th Cir. 2009).

                   II      THE BRIEF OF THE UNITED STATES

The amicus curiae brief submitted by the United States represents a 180 degree reversal of its previous position on equitable tolling prior to the present petition. Petitioner’s writ clearly cites the position held by the United States commencing in 1980 until the present case. The United States supported equitable tolling in the 1980 deliberations on drafting of the Convention. In Preliminary Document No. 7 of September, 1980 in Comments of the Governments deliberating the Convention draft, the United States made the following comment on Article 11, which later became Article 12 in the final version of the Convention:

s extremely restrictive time limits. As a practical matter, it may not be possible to locate a child and to bring proceedings in an appropriate court within these limits. This is particularly true in large federated States such as the United States, which (5), (6) (7) (8) All cases cited at www.incadat.com. also has no requirement for persons to register upon establishing or changing their residence. A statute of limitations (emphasis added) of six months from the date of abduction to the institution of legal proceedings, or a maximum of one year in the case of the child’s concealment, will cut off many deserving applicants and their children. Rather than deterring abductions, this article may benefit those abductors who have the financial means and friends to arrange for life underground, perhaps moving from place to place to avoid detection. The child in the meantime is subjected to the life of a fugitive. It has been said that the time limits are necessary because children will be integrated into a new social environment within 6 months to a year, and that it would be contrary to their interests to be returned thereafter. Discussions with mental health professionals in the United States indicate that there is serious doubt about the correctness of such a general assumption. It is recognized that there comes a point in time when it could be harmful to uproot children after an abduction. However, as the Rapporteur points out, it is impossible to come up with an objective criterion concerning the child’s integration into a social environment so that any time period adopted ‘will always be of an arbitrary nature’ (Report, paragraph 89). It is true that possible harm to the child through renewed change of environment after a lengthy stay with the abductor should be considered. But this must be weighed against the Convention’s principal objective of deterring kidnappings, which are themselves traumatic experiences for children. In such a weighing process the unproved assumption of harm to children after an absence of six months to one year is clearly outweighed by the necessity to curb abductions. If the time limits of this article remain as written, they may promote rather than deter abductions. The United States urges that at the very least 1-year and 2-year limits be substituted for the present deadlines. (9) (Actes et documents de la Quartorzieme session, Tome III, Child Abduction, Hague Conference on Private International Law, Imprimerie Nationale/La Haye/1982).

In addition to calling for a minimum of a two year limit before the settled in defense can be invoked in cases of concealment, the United States, contrary to its present position, refers to the time limit as a statute of limitation. The United States’ brief before this court also fails to explain how a child whose left behind parent has been suddenly and inexplicitly removed from its life, who is often told by the abducting parent that the left behind parent is no longer interested in maintaining contact, or is indoctrinated with fabricated tales of horror from which the child has allegedly been saved, can possibly be well settled in any environment

In Public Notice 957, Fed. Reg. 1094 of March 26, 1984, the U.S. Department of State made the following point regarding Article 12. “If the alleged wrongdoer concealed the child’s whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.” P. 10509. (10)

1. III.  PERIODS OF ONE YEAR OR MORE DUE TO COURT DELAYS DO NOT INVOKE THE WELL SETTLED DEFENSE.

In a significant number of cases that were filed within the one year period, the final judgment was rendered two or more years after commencing the action. Those delays, whether due to crowded court calendars or the use of delay tactics by the abducting parent, do not constitute grounds to raise the well settled defense. (11)  Once the petition is filed in within the one year period, it would be inequitable to negatively impact petitioner’s chance of success due to delays beyond his control. It would certainly be an injustice to permit delays caused by the abductor to change the ultimate decision of the court as result of allowing the well settled defense. If that were the case law, delay tactics would be used in every case in order to undermine, if not nullify, the purpose of the Convention.

Concealment of the child is simply another form of delay tactic. As long as the period of concealment is tolled, the purpose of the Convention is preserved and the abducting

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11.“It will be noted once again that this time limit does not affect the length of the proceedings in court”. Comments of the Canadian Government, Actes et Documents, id. p. 231, under Art. 11.

parent does not profit by this harmful conduct. From the child’s perspective, there is no difference whether the time elapsed is due to concealment, delay tactics of the abductor, or overcrowded court calendars. If the time is tolled once the petition is filed in a timely manner, than there is no justification for not tolling the period during which a child is concealed. Counsel for these amici know of not one learned article published in leading journals that conclude the settled in defense serves the best interests of children.

A case which illustrates this point, Lee v. Ezra, (12) was decided by the Supreme Court of Israel. The mother unlawfully removed the child to Israel from Nevada. She did not inform the father where she and the child were located. Several months subsequent to the abduction, the father was able to obtain information which led him to believe that the child was in Israel, where the mother had family members. Although her precise location was unknown, the father was able to commence action as Israel’s civil law regulations permit the filing of Convention cases in the Tel Aviv court in such instances. His action was filed five months after the abduction. The Family Court granted substituted service and a default judgment was rendered ten months after the abduction, ordering the return of the child.

10. David Lee v. Lilly Ezra, Motion for  Leave to Appeal (Family Matters) 5690/10, August 10, 2010, Supreme Court  of Israel, (English translation and original decision in Hebrew).

The father appealed the decision to the District Court of Tel Aviv sitting as an appellate court. The District Court reversed the trial court, holding that the language of the Convention is clear and that the one year period runs until an action is commenced. In this case, the date on which the father filed his petition with the trial court is determinative. Therefore, the trial court erred in considering the settled in defense. In August of 2010, four and a half years after the abduction, the Supreme Court of Israel affirmed the ruling of the District Court. The child was then returned to the United States by the father, as the mother chose to remain in Israel, despite her allegations of the grave risk of intolerable physical and psychological harm to the child should he be returned. The simple fact that a petition was filed with the court within five months of the abduction, even though the actual trial took place three years subsequent to the abduction and the return occurred over four years later, meant that the settled in argument was not relevant. Certainly, none of the procedural matters are of concern to the child. Yet due to the fact that the US has no jurisdictional regulation parallel to that of Israel, a US court would consider the settled in argument in the same fact pattern simply because the left behind parent would have no place to file the petition in a timely manner. The results would most likely be completely opposite in the two countries due to the technicality of a filing provision or lack thereof.

The IAML seeks to have the Convention implemented in good faith. It should not be a weapon that a left behind parent can threaten to invoke for an undetermined period in order to gain tactical advantages in negotiating with the other party. In order to counter that possibility while not encouraging the concealment of abducted children, a simple solution is suggested. Whenever the whereabouts of the child is unknown to the left behind parent and the Central Authority of the requesting State is unable to ascertain the child’s location, filing an application with the Central Authority should be considered as the commencement of the proceedings for purposes of Article 12. There is nothing in the Convention that contradicts such an interpretation. In fact, as discussed above, some courts have held that the action commences when the application is filed with the Central Authority. If the application is filed within the one year period, then the settled in defense should not be considered. This enables the left behind parent to take action within the specified period while simultaneously discouraging the abducting parent to seek an advantage by concealing the child.

A further solution can be found in the 1996 Hague Convention on Jurisdiction and Protection of Children. Article 7(b) of that Convention provides that in the case of wrongful removal or retention, jurisdiction passes to the new State if the child resided in that new State for at least one year after the left behind parent has or should have had knowledge of the child’s whereabouts and did make a timely request. We believe that the adoption of this principle to the Abduction Convention, along with the solution of filing with the Central Authority as stated above, provides an equitable resolution for the implementation of the well settled defense in cases where the child is concealed

1. IV.   CONCLUSION

The IAML concludes that equitable tolling must be read into the Convention in cases where the child has been concealed by the abductor. A decision to the contrary would undermine the goals of the Convention and enable its own undoing. Failure to apply tolling not only encourages parents who consider abducting their children to carry out the abduction, it would cause further damage by encouraging those abductors to conceal their child. Consideration of the well settled defense significantly reduces the chances for a return order. It turns the Convention proceedings from a deliberation on the choice of forum to a hearing on the best interests of the child. This is contrary to the goals of the Convention, which are to discourage child abduction and to bring about the swift return of abducted children.

The IAML’s proposed solution of tolling the period in the case of a concealed child from the date of filing a petition with the Central Authority or adopting the provisions of Article 7(b) of the 1996 Convention on Jurisdiction and Protection of Children presents a reasonable and equitable resolution of the issue before this court.

Respectfully submitted

Cheryl Hepfer

Counsel of Record

President, International Academy of Matrimonial Lawyers

Edwin A. Freedman

  Gerald L. Nissenbaum

  Anne-Marie Hutchinson

Charlotte Butruille-Cardew

Daniel Trachsel

Timothy Amos

Timothy Scott