Lozano v. Montoya Alvarez,
572 U.S. ___ (2014)

Annotate this Case



No. 12–820



on writ of certiorari to the united states court of appeals for the second circuit

[March 5, 2014]

     Justice Alito, with whom Justice Breyer and Jus-tice Sotomayor join, concurring.

     I concur fully in the opinion of the Court. I write separately to explain why courts have equitable discretion under the Hague Convention to order a child’s return even after the child has become settled, and how that discretion prevents abuses that petitioner claims will follow from holding that Article 12’s 1-year period may not be equitably tolled.

     The Convention is designed to protect the interests of children and their parents. Much of the Convention can be understood as an attempt to balance the various interests of children and non-abducting parents when a par-ent abducts a child from the child’s country of habitual residence.

     When a child has been absent from the country of habitual residence for less than a year, the Convention conclusively presumes that the child’s nascent attachment to the new country is outweighed by the non-abducting parent’s interest in prompt return and the child’s own interest in returning to the country from which he or she was removed just a few months previously. This is why Article 12 requires return “forthwith” if the petition for returnis brought within a year of abduction, unless one of the narrow exceptions set forth in Article 13 or 20 applies. Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), Oct. 25, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.), p. 9. But, as the Convention recognizes, at some point the child will become accustomed to the new environment, making Article 12’s conclusive presumption inappropriate. Thus, if the petition for return is brought after a year has elapsed, the court must determine whether the child has become “settled” in the new country; and if this has occurred, the court need not order return. Ibid. As the majority recognizes, this provision of the Convention “opens the door to consideration of . . . the child’s interest in settlement.” Ante, at 13.

     But opening the door to consideration of the child’s attachment to the new country does not mean closing the door to evaluating all other interests of the child andthe non-abducting parent. The fact that, after one year,a child’s need for stability requires a court to take into account the child’s attachment to the new country does not mean that such attachment becomes the only factor worth considering when evaluating a petition for return.

     Nothing in Article 12 prohibits courts from taking other factors into account. To the contrary, the Convention explicitly permits them to do so. Article 18 provides that “[t]he provisions of this Chapter [including Article 12] do not limit the power of a judicial or administrative author-ity to order the return of the child at any time.” Hague Convention, Treaty Doc., at 11. A court thus has power to order the child’s return in the exercise of its sound discretion even where Article 12’s obligation to order such return no longer applies.

     This provision makes eminent sense. Even after a year has elapsed and the child has become settled in the new environment, a variety of factors may outweigh the child’s interest in remaining in the new country, such as the child’s interest in returning to his or her original country of residence (with which he or she may still have close ties, despite having become settled in the new country); the child’s need for contact with the non-abducting parent, who was exercising custody when the abduction occurred; the non-abducting parent’s interest in exercising the cus-tody to which he or she is legally entitled; the need to discourage inequitable conduct (such as concealment) by abducting parents; and the need to deter international abductions generally.

     Article 12 places no limit on Article 18’s grant of discretionary power to order return. Article 18 expressly states as much. See ibid. (Article 12 “do[es] not limit the power of a judicial or administrative authority to order the return of the child”). Even without Article 18’s express language, it would be clear that Article 12 merely tells a court when it must order return, without telling it when it may do so. Article 12 states that, after the 1-year period has elapsed, a court “shall . . . order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Id., at 9. The final clause indicates when the obligation imposed earlier in the sentence terminates; it does not substitute for that obligation a prohibition on ordering return. When a mother tells her child, “Come straight home from school, unless one of your friends invites you to a movie,” the mother has not prohibited her child from coming home immediately after school even if a friend proposes a film. Cf. Department of Commerce v. United States House of Representatives, 525 U. S. 316, 339 (1999) (explaining that the meaning of a similar sentence structure in 13 U. S. C. §195 “depends primarily on the broader context in which that structure appears”). Thus, nothing in Article 12 calls into question the discretionary power of courts to order return after the 1-year period has expired and the child has become settled.

     Reading the Convention to impose a prohibition on return would be highly anomalous, given that the “Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott v. Abbott, 560 U. S. 1, 20 (2010) . Such a prohibition would run counter to other provisions of the Convention. For instance, Article 13(b) gives a court discretion to return or decline to return a child who has not become settled if “there is a grave risk that . . . return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, Treaty Doc., at 10. If a court has discretion to order return even where such return poses “a grave risk” of harm or threatens to place the child in an “intolerable situation,” surely it has discretion to order return when faced with the lesser risk attendant on removing a child from the child’s present environment (especially given that the child will generally be returning to a known environment: her country of habitual residence).

     The State Department has adopted the view that the Convention empowers a court, in its equitable discretion, to return a child who has become settled. In the analysis that it provided to the Senate in connection with the ratification process, the Department made clear that, even when a year has elapsed and the child has become settled, a court may still consider such factors as “evidence . . . concerning the child’s contacts with and ties to his or her State of habitual residence,” “[t]he reason for the passage of time,” and any concealment by the abducting parent in determining whether to order return. Hague International Child Abduction Convention; Text and Legal Analysis (State Legal Analysis), 51 Fed. Reg. 10494, 10509 (1986). The Department continues to endorse this view today. See Brief for United States as Amicus Curiae 19. As this Court has previously explained (in the context of the Convention, in fact), the State Department’s interpretation of treaties “ ‘is entitled to great weight.’ ” Abbott, supra, at 15 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 185 (1982) ).

     So, too, is the interpretation of the courts of our sister signatories. See Abbott, supra, at 16. The United Kingdom’s House of Lords (at the time that nation’s highest court) has held that “a settled child might nevertheless be returned” by a court in the exercise of its discretion—a conclusion driven in part by acknowledgment of the in-equity of rewarding concealment. In re M, [2008] 1 A. C. 1288, 1304, ¶31 (Eng. 2007) (opinion of Baroness Hale of Richmond). Likewise, the Supreme Court of Ireland has concluded that courts have equitable discretion to order return of a child who has become settled. See P. v. B. (No. 2), [1999] 4 I. R. 185. I am unaware of any high courts of states signatory that have concluded to the contrary.

     Given the foregoing, it is perhaps unsurprising that the Courts of Appeals to have considered the question have found that a court possesses equitable discretion to order return of a child despite the child’s having become settled in the new country. See Yaman v. Yaman, 730 F. 3d 1, 21 (CA1 2013); Blondin v. Dubois, 238 F. 3d 153, 164 (CA2 2001). And other Courts of Appeals have found more generally that none of the Convention’s exceptions prohibit return. See, e.g., Asvesta v. Petroutsas, 580 F. 3d 1000, 1004 (CA9 2009); Miller v. Miller, 240 F. 3d 392, 402 (CA4 2001).

     Equitable discretion to order return of a settled child is particularly important in light of the fact that the Convention, as the Court correctly holds today, does not provide for equitable tolling of Article 12’s 1-year period. Peti-tioner predicts dire consequences from the Court’s holding. He argues that, as a result of our decision, the United States will become an abduction haven, with parents concealing their children here until Article 12’s 1-year period has run and then claiming their children have become settled and hence ineligible for return. But such inequitable conduct would weigh heavily in favor of returning a child even if she has become settled. See, e.g., State Legal Analysis, 51 Fed. Reg. 10509 (“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”); In re M, supra, at 1310, ¶31 (recognizing that a court may take concealment into account in considering whether to return a settled child). Given the courts’ discretion to order return in response to concealment, I do not believe the Court’s decision today risks incentivizing parents to flee with their children to this country and conceal them.

     Equitable discretion is also a far better tool than equitable tolling with which to address the dangers of concealment. 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. By contrast, when a court exercises its equitable discretion, it may consider other factors in addition to concealment. While concealment is a significant factor and should weigh heavily in a court’s analysis, in appropriate cases it can be overcome by circumstances such as the extended length of the child’s residence in this country, any strong ties the child has formed here, and the child’s attenuated connections to his or her former country.

     In short, I believe the power of a court, in the exercise of its sound discretion, to return even a settled child prevents the inapplicability of equitable tolling to Article 12’s 1-year limit from encouraging parents to flee to the United States and conceal their children here. In light of this understanding, I have no difficulty joining the opinion of the Court.

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