One-Year Requirement Under the Hague Convention Not Subject to Equitable Tolling

law-related-object-set-book-gavel-scale-justice-31723205In a decision earlier this year, the U.S. Supreme Court decided that the one-year requirement to file a case under the Hague Convention was not subject to equitable tolling.  In other words, if a petition under the Hague Convention is filed after the 1-year period expires, the court “shall . . . order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Lozano v. Montoya, 572 U.S. __  (2014).  In that case, the parties resided with their daughter in London until November 2008, when the mother left with the child for a women’s shelter.

In July 2009, the mother and child left the United Kingdom and ultimately settled in New York.  the father did not locate the mother and their child until November 2010, more than 16 months after the mother had left with the child from London.  The father then filed his Petition for Return of the Child pursuant to the Hague Convention.  The Court denied his petition on the basis that the parties had now settled n New York, and that the 1-year period could not be equitably tolled.  However, the Court did note that an abducting parent does not necessarily profit by running out the clock since both American courts and Convention signatories have considered concealment as a factor in determining whether a child is settled.

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