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International Child Custody

| Lindsay Hanifan Childs


Supreme Court of the United States
No. 12-829

Argued December 11, 2013
Decided March 5, 2014

By: Lindsay C. Hanifan, Esquire
The family lawyers at Vetrano Law noted a recent Supreme Court decision that affects clients with international child custody cases. With Father living in the UK and Mother and Child living in the US, attorneys argued whether or not Child would be returned to Child’s former residence (UK) under Article 12 of the Hague Convention. Each child custody case is unique for those who reside or hold citizenship in a foreign country. A family lawyer can explain how international and US laws apply in each individual’s case.
Mother and Father, who lived in London, began dating in early 2004, but never married. Mother gave birth to a daughter in October 2005. When the child was three years old, Mother visited her sister in New York while the child stayed in London with Father. Upon her return to London, Mother noticed that the child was fearful around Father, and she became concerned. As a result, Mother left Father and took the child with her.
Mother spent seven months living in a women’s shelter with the child, and then brought the child to New York with her, where they began living with Mother’s sister and her family. Shortly after Mother left London, Father began searching for her and child, and filed pleadings with the United Kingdom court seeking orders to compel the disclosure of Mother’s whereabouts and to award him regular contact with the child. Father was eventually able to determine that the child was not in the United Kingdom, and suspected that she was in New York. Therefore, on March 15, 2010, he filed a form with the Hague Convention Central Authority for England and Wales, requesting that the child be returned from the United States.
In response to Father’s request, the Office of Children’s Issues in the U.S. Department of State confirmed that Mother had entered the United States. Father was then able to find Mother’s address in New York, and filed a Petition for Return of Child pursuant to The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), and the International Child Abduction Remedies Act (“ICARA”). Article 12 of the Hague Convention provides that if a petition for return of a child is filed within one year after the child is wrongfully removed, the court “shall order the return of the child forthwith.” If, however, the petition for return of a child is filed more than one year after the child is wrongfully removed, then the court shall order the return of the child, “unless it is demonstrated that the child is now settled in its new environment.”
Here, the United States District Court for the Southern District of New York found that the child had been wrongfully removed from the United Kingdom, because she had been a habitual resident there prior to her removal and because Father had actually been exercising his custody rights when she was removed. Nonetheless, because Father’s petition was filed more than one year after the child had been removed, trial court concluded that the child was now settled in her current home of New York. Therefore, because it would be “extremely disruptive” to send the child back to London, the trial court denied Father’s petition. This conclusion was based upon evidence that the child’s family, educational, social and home life were stable in New York, and specifically upon testimony of the child’s therapist, who had diagnosed her with posttraumatic stress disorder and observed that after six months in New York, she had become a completely different child.
Father appealed the trial court’s decision, arguing that the one-year period should be equitably tolled for the period of time in which Mother was concealing the location of the child. The Second Circuit affirmed the trial court’s ruling, concluding that Article 12’s one-year period is not akin to a statute of limitations, because it does not prohibit the filing of a petition for the return of a child after one year. Instead, the Hague Convention merely allows the court to consider whether the child has become settled in their new environment if the one-year period has run.
Father appealed again, and the Supreme Court of the United States granted certiorari. The issue on appeal was “whether Article 12’s one-year period is subject to equitable tolling.” The Supreme Court noted that equitable tolling is a “long-established feature of American jurisprudence,” and that when Congress enacts legislation, it does so with the knowledge of such principles. Thus, in the United States, it is presumed that a statute of limitations is subject to equitable tolling as long as such tolling is consistent with the statute.
A treaty, however, is not a statute enacted by the federal legislature. Instead, a treaty is a compact between two or more countries. Because there is no principle of equitable tolling that is common to all signatories of the Hague Convention, the Supreme Court found that it cannot apply the same presumption about equitable tolling to the Hague Convention. Furthermore, even if there were a principle of equitable tolling that were common to the signatories of the Hague Convention, it would not necessarily apply to Article 12’s one-year period, because such period is not a statute of limitations. In order to constitute a statute of limitations, a provision must eliminate the remedy that the law affords, not simply limit or qualify such remedy.
Finally, the Court emphasized that because instances of child abduction frequently include concealment, it would have been obvious to the drafters of the Hague Convention that an alternative to commencing the one-year period on the date of the wrongful removal would be to commence the one-year period on the date that the child’s whereabouts are discovered. Nonetheless, the drafters chose to commence the one-year period on the date of the wrongful removal. The Court also pointed out that in many instances the measures that are taken to conceal the child’s whereabouts often prevent the child from becoming settled in any one environment, thus decreasing the likelihood that a petition for return of child filed after one year would be denied on the grounds that the child has become settled in its new environment. Therefore, the Supreme Court held that Article 12’s one-year period is not subject to equitable tolling, and affirmed the Second Circuit’s decision denying Father’s petition.

Vetrano Vetrano & Feinman Attorneys Tony Vetrano, Lindsay Childs, Sarinia Feinman, Kate Vetrano and Donna Marcus

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