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Family Law — international abduction

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2014//

Family Law — international abduction

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2014//

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U.S. Supreme Court

Civil

Family Law — international abduction

The 1-year period in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction is not subject to equitable tolling.

Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides for the period to commence on “the date of the wrongful removal or retention” and makes no provision for an extension. Because the drafters did not choose to delay the period’s commencement until discovery of the child’s location—the obvious alternative to the date of wrongful removal—the natural implication is that they did not intend to commence the period on that later date. Lozano contends that equitable tolling is nonetheless consistent with the Convention’s goal of deterring child abductions, but the Convention does not pursue that goal at any cost, having recognized that the return remedy may be overcome by, e.g., the child’s interest in settlement. And the abducting parent does not necessarily profit by running out the clock, since both American courts and other Convention signatories have considered concealment as a factor in determining whether a child is settled. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives.

697 F. 3d 41, affirmed.

12-820 Lozano v. Alvarez

Thomas, J.; Alito, J., concurring.

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