International Custody Disputes Are Time-Sensitive

The Supreme Court ruled recently on the case of an international custody dispute, and ruled that the law in this case doesn’t have the flexibility to take exigent circumstances into account. According to the Hague Convention on the Civil Aspects of International Child Abduction, a treaty signed by many first-world countries, says that if a motion to return an abducted child to their home country is filed within 12 months, the child must be returned to their home country.

In the case of Manuel Jose Lozano vs. Diana Lucia Montoya Alvarez, however, the father filing the motion was unable to determine what country the mother (who lost custody in a UK divorce proceeding) had escaped to with his child. He looked for her for two years before learning that she had come to the USA and settled in New York.

Because the 12 month limit had passed, according to the Hague Convention, it was up to a US judge to determine whether or not the child had “settled” in her new home — and thus wasn’t eligible to be returned to her father. Lozano’s petition was that the 12-month period should begin when the child was located, not from when the child first disappeared.

The Supreme Court unanimously agreed that Lozano’s petition was to be denied. Justice Clarence Thomas wrote that “the treaty…does not allow for the deadline to be extended,” and essentially because of the international nature of the treaty, the US court had no authority to extend special exceptions to the agreement. He did note that the 12-month deadline does powerfully incentivize abducting parents to keep their whereabouts a secret.

But, Thomas wrote, the treaty’s purpose is not strictly to prevent abductions — it must first and foremost be concerned with the well-being of the child. Uprooting the daughter a second time, and potentially returning her to a dangerous situation (Alvarez had alleged that Lozano was physically and emotionally abusive) was a more powerful motivator than Lozano’s literal inability to meet the terms of the treaty.

 

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