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New Urgency over Abductions

By Kari Santos | Dec. 2, 2014

Law Office Management

Dec. 2, 2014

New Urgency over Abductions

A SCOTUS decision warns family law practitioners to act swiftly in international child abduction cases

Thousands of California children are abducted each year by family members, according to state Department of Justice statistics. And in light of a U.S. Supreme Court decision earlier this year, attorneys who are called on to help clients in this situation must know what to do and act quickly - especially if the missing child may have crossed international borders.

"Both globally and nationally, California is a significant source of the international child abduction cases handled," reports the Web page for the Justice Department's Child Abduction Unit, noting that about half of the state's cases are related to Mexico.

The motivations behind abductions that violate custodial rights vary from case to case, but a short list includes: an escalating dispute over a custody order; conflicts over visitation privileges and/or child-support payments; a warped expression of control; fear of abuse by the other parent; or anger or revenge over the breakup of a relationship or the other parent's new circumstances.

Whether the abduction is committed by a family member or an outsider, the children involved can suffer serious psychological and emotional trauma. Many are forced to live like fugitives, plunged into instability and deprivation, and often struggle with divided loyalties - alienation and conflicted feelings toward both parents.

International agreements provide a framework for minimizing disputes over reunification, and last March the nation's high court addressed a conflict among the federal circuits over whether federal statutes of limitation also apply.

In Lozano v. Montoya-Alvarez (134 S.Ct. 1224 (2014)), the Court ruled that a petition to reunite the abducted child with a parent still residing abroad must be filed within one year of the abduction. If that does not occur, the petitioner faces a steep uphill battle as international law presumes the child may well have become settled in his or her new environment.

The case involved a Colombian couple who lived with their daughter in London until November 2008, when the mother and child moved to a women's shelter. The following July they left the United Kingdom, ultimately settling in New York. The father eventually located them, and in November 2010 he filed a petition in federal district court to return his daughter to the country of "habitual residence," pursuant to the Hague Convention and the International Child Abduction Remedies Act. (See 42 U.S.C. §§ 11601-11610; the relevant sections have been reclassified and are now found at 22 U.S.C. §§ 9001-9011.)

The treaty contains a one-year provision (also included in the U.S. statute) for filing a petition for return. Although by then it had been more than 16 months since the girl left the U.K., the father argued that because she had been concealed, the provision should be tolled during the time he was attempting in good faith to locate her. Even though the father established that his daughter was wrongfully abducted and purposefully concealed, the district court denied the petition - concluding that the child was settled in a new environment and repatriation would be disruptive.

The Supreme Court granted review of Lozano to resolve a split among the federal circuits. Writing for a unanimous court, Justice Clarence Thomas explained that although equitable tolling is presumed to apply to federal statutes of limitation, it does not necessarily apply to an international treaty such as the Hague Convention.

(In a separate concurring opinion, Justice Samuel Alito, joined by Justices Stephen Breyer and Sonia Sotomayor, expressed the view that a court has equitable discretion to order the return of a child even if proceedings are brought after the one-year period and the child has settled in the new environment. Alito wrote that concealment of the child is one of the equitable factors that the court may consider in rebutting this affirmative defense but no longer an absolute bar to it. While this view may be persuasive to many family law practitioners, it did not command a majority.)

The Lozano decision means clients must retain experts much sooner in the process if they hope to locate an internationally abducted child by the one-year deadline imposed by the international treaty. Private investigators who deal exclusively with child abductions may be able to actually track down the child. A mental health professional should address the issues of stability and continuity in the new environment, and the best interests of the child.

Family law practitioners can help by maintaining continuing contacts with law enforcement offices and by engaging a forensic expert who has successfully used GPS technology and Internet tracking to locate missing children.

Finally, counsel should specifically advise the client - preferably in writing - about the one-year limitation to locate the child and file a petition under the Hague Convention treaty. Failure to do so may be considered less than the standard of care now that the Lozano decision is on the books.

Stephen B. Ruben is a founding partner of the Ruben/Huggins law firm and a certified family law specialist.


Kari Santos

Daily Journal Staff Writer

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