In Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) the Second Circuit observed that Article 12 of the Hague Convention, the “well-settled” defense, requires that a child wrongfully removed from a country be returned to that country in order to undergo a custody determination, unless the child is "now settled in its new environment." 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.
Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano") met and began dating in London in early 2004. [ See In re Lozano, 809 F.Supp.2d 197, 203 (S.D.N.Y.2011).] They never married. From the child's birth on October 21, 2005, until November 19, 2008, Lozano, Alvarez, and the child lived together in London. In October 2008, Alvarez spoke with the child's doctor regarding a host of concerns, including the child's silence at the nursery, frequent crying, nightmares, and bed-wetting. The child's nursery manager also noted the child's unusual behavior and concluded that the "home 'environment obviously had a negative effect upon [her]. Based on the foregoing, the district court found that the child had been exposed to, and negatively affected by, the problems in the couple's relationship. On November 19, 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment] to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. Alvarez had not had a job in the United States, but Maria had been employed as a nanny for the same family for four years and her partner owned a grocery business. Because Alvarez and the child had British passports, they were allowed to enter the United States without a visa" for a stay of ninety days or less. This period expired in October 2009. Alvarez testified that she had spoken with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen.
Since her arrival in New York, the child attended the same school and, at the time of the proceedings before the district court, was enrolled in kindergarten. The child's Academic Standards Reports from the 2009-2010 school year indicated that the child has been making progress both socially and academically. Outside of school, in addition to spending time with members of her extended family, the child had friends whom she met at the park and the library. The child was also enrolled in ballet classes and, on the weekends, attended church with Alvarez. After arriving in New York, both the child and Alvarez began receiving therapy from a psychiatric social worker at a family medical clinic. The therapist testified that "when she first met the child, the child was unable to speak, make eye contact, or play in the therapist's office."The therapist further noted that the child "would wet herself, was hypervigilant, and had a very heightened startle response.” By February 2010, the therapist diagnosed the child with post-traumatic stress disorder ("PTSD") caused by her "experience living in the
United Kingdom before coming to New York, including living in a shelter system, having to move to a new country, and knowing that her mother had been harmed or threatened." Within six months of arriving in New York, however, Alvarez reported that the child's behavior had improved. The therapist agreed with this assessment, describing the child as " 'completely different.'
After Lozano filed his petition for return in December 2010, Alvarez and the child resumed meeting with the therapist. After Alvarez's departure, Lozano took a number of steps to attempt to find his
child. Immediately after Alvarez left, he reached out to her sister in London, who denied any knowledge of Alvarez's whereabouts. In the summer of 2009, Lozano filed an application with a British court to "ensure that he obtains regular contact with his child.". He also, via court filing, submitted orders to Alvarez's sisters and her former counsel, as well as the child's nursery and doctor and various police and government offices, seeking information on the child's whereabouts. After exhausting all possibility that the child was still in the United Kingdom on March 15, 2010, he filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom. On November 10, 2010, Lozano filed a Petition for Return of Child in the United States District Court requesting an order requiring that the child be returned to London to have a British court make a custody determination.
The district court first held that Lozano had made out a prima facie case of wrongful retention under the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. The court noted that the child must be returned to the United Kingdom unless Alvarez established an affirmative defense. The district court rejected Alvarez's defense that "there is a grave risk" that the child's return to the United Kingdom would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. However, it found that she had established the “now-settled” defense and denied the petition.
On appeal only the now settled defense was at issue. Lozano argued that the one-year period should be tolled until the time Lozano reasonably could have learned of his child's whereabouts. The district court disagreed, concluding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. Having rejected Lozano's tolling argument, the district court next held that the now settled defense applied and was a sufficient reason to have a United States court, as opposed to an English court, decide the child's custody.
On appeal, Lozano raised three principal objections to the district court's decision. First, he argued that, as a matter of law, 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 such time as he could have reasonably located his child. Second, Lozano contended that the district court erred in finding that the child was settled in New York despite the fact that neither the child nor her mother had legal status in the United States. Finally, even if lack of legal immigration status "does not preclude a well-settled finding as a matter of law," Lozano argued that "the District Court erred in finding that Alvarez proved by a preponderance of the evidence that the parties' daughter was well-settled in the United States.
The Second Circuit reiterated that in cases arising under the Convention and ICARA, it reviews a district court's factual determinations for clear error." Interpretation of the Convention, however, is an issue of law, which it reviews de novo. It also reviews de novo "the district court's application of the Convention to the facts it has found. It noted that in interpreting a treaty, it is well established that it begins with the text of the treaty and the context in which the written words are used. The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories. General rules of statutory construction may be brought to bear on difficult or ambiguous passages, but it also looks beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the signatory parties in determining the meaning of a treaty provision. While the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the Executive Branch's interpretation of a treaty is entitled to great weight.
The Second Circuit agreed with the district court and held that while an abducting parent's conduct may be taken into account when deciding whether a child is settled in his or her new environment, the one-year period set out in Article 12 is not subject to equitable tolling. Neither Article 12 of the Hague Convention nor its implementing legislation, ICARA, explicitly permit or prohibit tolling of the one-year period before a parent can raise the now settled defense. Article 12 provides, in relevant part: 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. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the proceeding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Accordingly, the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Even if these two conditions are met, Article 12 does not bar the Central Authority of a Contracting State from ordering the return of a settled child. If more than one year has passed, a demonstration that the child is now settled in its new environment' may be a sufficient ground for refusing to order repatriation." Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. 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 that child to be returned to her country of habitual residency. This interpretation of Article 12 was bolstered by Article 18, which provides that none of the provisions in the Convention "limit the power of a judicial or administrative authority to order the return of the child at any time."Convention. The Convention's drafting history strongly supported Alvarez's position that the one-year period in Article 12 was designed to allow courts to take into account a child's interest in remaining in the country to which she has been abducted after a certain amount of time has passed. If this understanding of the second paragraph of Article 12 was correct, allowing equitable tolling of the one-year period would undermine its purpose.
After the Second Circuit determined that the district court properly permitted Alvarez to raise the Article 12 now settled defense, it considered whether the district court erred in finding the child to be settled in New York. Lozano primarily argued that "[w]here an abducted child resides in the abducted-to country illegally, a well-settled finding should be barred as a matter of law." Given the Convention's text and purpose, the Second Circuit held that immigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.
Additionally, it held that, in any given case, the weight to be ascribed to a child's immigration status will necessarily vary. Neither the Convention nor ICARA defines "settled" or states how a child's
settlement is to be proved. It held that "settled" should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment. In making this determination, a court may consider any factor relevant to a child's connection to his living arrangement. Such an approach is in line with the Convention's overarching focus on a child's practical well-being. Factors that courts consider should generally include: (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.
The Second Circuit rejected Lozano’s contention that the district court erred because it discounted the significance of the child's lack of immigration status once it found that the child did not face an immediate threat of deportation. For example, a child might be ineligible for certain government-conferred benefits. It noted that the importance of a child's immigration status will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits. Moreover, rather than
considering the weight to be given to a child's immigration status in the abstract, courts deciding whether a child is settled must simultaneously balance many factors which, as in this case, may not support the same determination.
The Court found that the district court's analysis was largely compatible with the approach it prescribed Lozano contended that the district court's finding were not backed by a preponderance of the evidence because "most of the evidence on the well-settled issue should not be given much weight because it came from [Alvarez's] own self-interested hearsay testimony, and to a lesser extent, from the therapist and child's school records.". Relatedly, Lozano claimed that Alvarez should have provided "corroborating testimony ... and other evidence of the child's connections to her new environment ." .These arguments were rejected.. None of Lozano's challenges to these findings left the Court with a definite and firm conviction that a mistake has been committed. The judgment of the district court was affirmed.
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