Lozano v. Montoya Alvarez - Oral Argument - December 11, 2013

Lozano v. Montoya Alvarez

Media for Lozano v. Montoya Alvarez

Audio Transcription for Opinion Announcement - March 05, 2014 in Lozano v. Montoya Alvarez

Audio Transcription for Oral Argument - December 11, 2013 in Lozano v. Montoya Alvarez

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 12-820, Lozano v. Alvarez.

Mr. Regan.

Shawn P. Regan:

Thank you, Mr. Chief Justice, and may it please the Court:

I represent Manuel Jose Lozano, a father who loves his daughter.

Respondent kidnapped that daughter and concealed her from Mr. Lozano, first in the United Kingdom for nearly eight months; then in France, then in the United States.

In Abbott, this Court recognized child abduction to be one of the worst forms of child abuse, and that the Convention therefore aims to deter and prevent child abduction from occurring in the first instance.

Equitable tolling furthers that aim.

By contrast the rule adopted by the Second Circuit provides a playbook for thwarting the Convention.

Ruth Bader Ginsburg:

Mr. -- Mr. Regan, you -- you want us to apply equitable tolling in a field, family law, where the interest of the child is always of paramount importance and running all through family law is -- is that concern.

And changed circumstances figure very large.

So decrees that might be final in another area of law are not, because if circumstances change, then the child custody may change.

So it seems to me that this area is hugely unfit for equitable tolling that would leave out consideration of the child's best interests.

Shawn P. Regan:

Justice Ginsburg, we believe that equitable tolling does provide, within the context of the Convention, consideration -- the opportunity for courts to consider the interests of the child.

And that's most poignantly illustrated by some of the cases in which it has been applied.

If I may provide an example.

An example in Respondent's brief, Mendez Lynch v. Mendez Lynch on page 31 of their brief.

It's a case in which the Court found equitable tolling is available, and it found equitable tolling applied factually.

The Court, however, considered the facts and circumstances of the child's life, including those facts and circumstances that relate to the extent to which the child is settled; but it considered those facts and circumstances within the rubric of the Article 13 analysis, and that is consistent with what other courts have done in what I would -- what I would term more natural Article 12--

Anthony M. Kennedy:

Is that equitable discretion or is that still equitable tolling?

Because as I understand equitable tolling, if it applies, and say, there's a 6-month suspension, the child must go back so that there's -- so that the -- that the weighing that you're talking about just doesn't -- doesn't come into play.

Shawn P. Regan:

--Thank you, Justice Kennedy.

And I think this is important because I think this -- this illustrates how foreign courts have miscomprehended equitable tolling, how it would operate, how it operates within the context of the convention.

Equitable tolling would prevent the abducting parent from taking advantage of the Article 12-2 exception, that -- that the child should not be returned because the child is now -- because the parent has met that minimal routine showing of the child is now settled.

He's going to school, he or she is -- has some friends, so on and so forth, that they are living a normal life here.

What it does not prevent, and Mendez illustrates this, as do other cases, it does not prevent the court from looking at the Article 13 considerations.

So for example, as in Mendez and other cases, the court will still consider if the child -- if the child is of sufficient age and maturity to testify such that this court should take into account his or her views or objections to return, the court can do so.

Ruth Bader Ginsburg:

Where is Article 13 so we can look at it?

Shawn P. Regan:

I'm sorry, Justice Ginsburg?

Antonin Scalia:

Where is it in the materials?

Shawn P. Regan:

Mendez v. Lynch.