Don't Stop the Clock: Why Equitable Tolling Should Not Be Read into the Hague Convention on International Child Abduction

Abstract

Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction allows an abducting parent to avoid return of the child if they can show that more than a year has passed since the wrongful removal or retention, and that the child is well-settled in their new environment. In cases where concealment of the abducted child prevented filing within the one-year period, the Eleventh and Ninth Circuits have applied equitable tolling to delay the start of the one year. In October 2012, the Second Circuit became the first circuit court to reject equitable tolling in Lozano v. Alvarez. The First Circuit quickly followed suit in September 2013 in Yaman v. Yaman. The Supreme Court will hear arguments this issue in December 2013. The application of equitable tolling lacks support in the text, drafting history, and underlying purposes of the Convention. This Note then argues that the Eleventh and Ninth Circuits improperly emphasized the rights of the parent because of an American legal tradition of prioritizing parental rights over children’s rights and interests. Ultimately, this Note recommends that the Supreme Court reject equitable tolling and instead push courts to reach the well-settled defense, which follows the text of the Convention, achieves its underlying goals by focusing on children’s interests, and will still serve to deter child abductions.