WASHINGTON The U.S. Supreme Court on Wednesday appeared conflicted as the justices considered whether a father who lives in the United Kingdom has the legal authority to seek the immediate return of his daughter, who was taken to New York by her mother.
During a one-hour oral argument, the nine justices appeared to struggle over how to balance the interests of the now 8-year-old child, who has been in the United States for four years, with the need to deter international child abduction.
The mother, Diana Lucia Montoya Alvarez, left London with the child in July 2009 after spending several months in a women's shelter. She later claimed that the father, Manuel Jose Lozano, had been abusive. Both parents are from Colombia but met in London in 2004.
Lozano, who has not seen the child since November 2008, cites the Hague Convention of the Civil Aspects of International Child Abduction that requires children to be returned to the country of residence within one year of being abducted. Only then can custody rights be adjudicated.
A question from Justice Stephen Breyer summarized the apparent concerns among the justices.
"On the one hand, we don't want to encourage abduction. On the other hand we don't want to treat the child as a yo-yo," he said.
The legal problem for Lozano is that he did not make his official request until after Alvarez and the girl had already been absent for more than a year.
He says courts should take into account the fact that he did not know where Alvarez had gone. The one-year clock should only start ticking from the moment he located her, he argues.
The one-year finding has significance because after that time elapsed, Alvarez was allowed under the convention to argue that the child now was settled in her new environment. A district court judge in White Plains, New York, ruled in her favor in 2011. The New York-based 2nd U.S. Circuit Court of Appeals agreed in an October 2012 ruling.
That means that, unless the Supreme Court rules against Alvarez, the child will remain in the United States with her while custody proceedings continue.
During the argument, the justices appeared to be inclined to rule against Lozano on the timing issue, but several questioned lawyers on both sides about to what extent, if any, Alvarez's actions would weigh against her.
Justice Samuel Alito suggested a solution in which judges would consider child abduction as a "strong factor" against the parent who has taken the child.
A ruling is expected by the end of June.
The case is Lozano v. Alvarez, U.S. Supreme Court, No. 12-820.