On October 1, 2012, a unanimous Second Circuit panel ruled in favor of Cravath client, Diana Montoya Alvarez, affirming the District Court’s denial of a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The petition, which was brought by the father of Ms. Montoya Alvarez’s daughter, requested that the child be returned to her home country, the United Kingdom, for custody proceedings.
In November 2010, more than 16 months after Ms. Montoya Alvarez and her daughter left the United Kingdom to come to the United States, the father filed his petition in the Southern District of New York. In February 2011, Cravath represented Ms. Montoya Alvarez at a two-day evidentiary hearing before Judge Kenneth Karas, which included testimony from the parties, the child’s therapist and two psychology experts. After post-trial briefing and oral argument, Judge Karas ruled in favor of Ms. Montoya Alvarez in April 2011, holding that her daughter could remain in the United States because she was “now settled” in her new home, a defense to return provided for in Article 12 of the Hague Convention that can be raised if a petition is filed more than one year after the child is removed.
The child’s father appealed to the Second Circuit, arguing that Ms. Montoya Alvarez should be precluded from raising the “now settled” defense because the one-year period should be equitably tolled, and that the child’s immigration status should prevent a finding that she is “now settled.” The Second Circuit solicited an amicus brief from the United States State Department, which was filed two days before oral argument. The Government’s brief supported our client’s position on both issues on appeal.
Following oral argument in August 2012, the Second Circuit panel (Judge Robert Katzmann, Judge Richard Wesley and Judge Gerard Lynch) affirmed the decision, holding that (i) equitable tolling does not apply to the one-year period in the “now settled” defense and (ii) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”
The Cravath team included partner Rachel G. Skaistis and associates Lauren A. Moskowitz, Carrie R. Bierman, John D. Biancamano and Casey K. Lee.