Lozano v. Alvarez
2011 U.S. Dist. LEXIS 93373
S.D.N.Y.2011Background
- Petitioner sought return of his child under Hague Convention and ICARA, filed Nov 10, 2010, with an Emergency Petition for temporary custody; ex parte measures seized passports and ordered appearance; evidentiary hearing held Feb 2–3, 2011; petition denied Apr 29, 2011; child currently resides in New York with Respondent and her sister’s family; court found Petitioner’s credibility mixed but awarded no grave risk, and denied return despite prima facie wrongful removal.
- Respondent, originally from Colombia, left the U.K. with the child in Nov 2008 after alleging domestic abuse; Respondent and child stayed in a shelter and later moved to New York in July 2009; Respondent conducted therapy for PTSD, and the child exhibited trauma symptoms upon arrival in the U.S.; Respondent argues grave risk and settled defenses to avoid repatriation.
- Petitioner had engaged in multiple efforts to locate the child and obtain a custody resolution, including seeking UK court orders and notifying authorities; Respondent left the U.K. with the child in violation of Petitioner’s custody rights; the court deemed the child settled in New York and that repatriation would disrupt the child’s stable environment.
- The court concluded it had subject-matter jurisdiction over wrongful removal, applied ICARA burdens, and determined the grave risk defense did not apply, while the settled defense under Article 12 did apply; discretionary relief denied to return the child to the U.K. due to the child’s settlement in New York.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the removal was wrongful under Hague/ICARA | Petitioner established prima facie wrongful removal | Respondent challenged return defenses | Petitioner established prima facie wrongful removal |
| Grave risk defense under Article 13(b) | Grave risk defense not proven; risk not grave | Respondent argued grave risk (PTSD/trauma) would follow return | grave risk defense not proven by clear and convincing evidence |
| Settled defense under Article 12 | Settlement defense should not bar return due to concealment delay | Child settled in New York; return would disrupt | Article 12 defense met; child settled in New York and should not be returned; discretionary denial of return upheld |
| Equitable tolling of Article 12 period | Tolling should apply due to concealment | One-year clock not tolled; not a limitations period | Equitable tolling not applied; one-year period not tolled; still found settled under Article 12 |
| Court’s discretion on whether to order repatriation | Discretion should favor return | Discretion favors keeping child in settled environment | Court exercised discretion to deny return given settled status; no repatriation |
Key Cases Cited
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (grave risk standard; focus on applicability of Article 13(b) and possible mitigations)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (establishment of Article 12 settled defense and cautious use of discretionary return)
- Blondin v. Dubois, 78 F. Supp. 2d 283 (S.D.N.Y. 2000) (remand discussions on grave risk and mitigating arrangements in Blondin III)
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (limits of Hague Convention defenses; custody determinations not for foreign return)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (framework for Hague Convention jurisdiction and considerations of habitual residence)