The text of the Hague Convention on child abduction seemed to read counter to New York lawyer Shawn P. Regan’s interpretation of where custody proceedings should be held, Breyer said.
And further, Breyer added: “Your idea is to send the child back to the husband unless the child gets up there and chooses between parents. That’s pretty tough on 8- or 9- or 10-year-old children — very tough.”
“I think you’ve hit, Justice Breyer, on just about every issue that I could possibly want to address today,” Regan said. Then he hesitated.
“But — and — and let me say, I — I respect the position of the 8- or 9-year-old child, the difficulty. I was that child before a judge on the — giving that sort of testimony. So I certainly appreciate it.”
Regan quickly moved on, but it was a striking moment at the court. Lawyers rarely bring personal experiences into the court’s discussion of law. Regan said in a later interview that he had not planned to bring up his past, and he did not mention his testimony as a child when he was practicing in moot court sessions about the case.
“But I felt like the court was really asking me if I understood the difficulty” of having a child choose between parents, Regan said. “I wanted them to know that I did appreciate” the situation.
The lawyer said his custody experience was nothing like the difficult international abduction case the court confronted last week.
The latter is something of a recurring theme for the Supreme Court: It is the third time in four years the justices have considered how to interpret articles of what is known formally as the Hague Convention on the Civil Aspects of International Child Abduction.
But federal courts are having difficulty reconciling some of the provisions of the agreement with domestic family law, and the number of cases is increasing.
The National Center for Missing and Exploited Children said in a brief filed with the court that the problem of internationally abducted children seems to be on the rise.
In 2012, the center said, the State Department received 1,143 new cases involving 1,617 children. Of those cases, 799 involved American children being taken to one of the nations that are part of the compact — about half of all countries are — with the rest being incidents of children brought to the United States.
“International abduction continues to exert a devastating emotional, financial, and social toll on the families and children involved,” the center’s brief said.
The case before the court concerned a child brought to the United States. Manuel Jose Lozano, Regan’s client, and Diana Lucia Montoya Alvarez are both Colombian, but they met and began living together in London. They had a daughter in 2005.
Lozano has described their relationship as good; Alvarez said Lozano was physically and emotionally abusive. In 2008, she left to take their daughter to nursery school and never went back. She stayed in a women’s shelter for months, then moved to France and then finally to live with her sister in New York.
All agree that Lozano diligently looked for his daughter, but it was not until two years later that he discovered she was in New York. He filed a motion to have her returned to Britain.
The question before the court is where custody proceedings should be held. The Hague Convention says that if a motion is filed within 12 months of the abduction, the child must be returned to the country of origin. But after that, a judge may consider whether a child has become “settled” in his or her new home, and whether it would not be in the child’s interest to be uprooted again for custody hearings.
Lozano couldn’t file the motion before the 12-month deadline because he didn’t know where his daughter was. He is asking the court to find that the 12-month period does not start until a parent locates the missing child.
Alvarez’s attorney, Lauren A. Moskowitz, said that is counter to the text, history and mission of the Hague Convention, and the Obama administration agreed.
Justice Anthony M. Kennedy summed up the dilemma.
“There are two different axes here,” he said. “One is the best interest of the child, and the other is an adequate deterrent so that parents don’t abduct. But those axes don’t cross very often, if at all.”
Justice Ruth Bader Ginsburg said that Regan’s proposal would protect parents, but that in family law “the interest of the child is always of paramount importance.”
She also said that “many of these, what you call kidnappers, happen to be badly abused women.”
Justice Samuel A. Alito Jr. agreed with Regan that the position taken by Alvarez and the government “would give a great incentive for parents to abduct children and hide them for a period of time.”
But he worried that Regan’s open-ended approach could be used many years later to uproot a child who really had established a new life. The discussion of the older child is what brought up the discussion of whether he or she at some point might be called to the stand.
The case is the first time a court of last resort in any of the convention countries has considered the issue, and the justices seemed conflicted.
Regan’s practice normally is contract and tort litigation; his firm, as well as Moskowitz’s, was asked to get involved by the lower court.
He had one other concern about his response to Breyer’s query: His mother was in the back of the courtroom, watching her son argue before the Supreme Court for the first time. He didn’t want to offend her.
They didn’t talk about it when the argument was over, he said. She just gave him a hug.
For previous High Court columns, go to washingtonpost.com/fedpage.