The drafters of the Hague Convention on the Civil Aspects of International Child Abduction intended that the various exceptions to the prompt return of an abducted child to his or her country of habitual residence be construed narrowly. (For the purposes of this article, with respect to return petitions initiated in the United States, the country of habitual residence could be any Hague Convention country other than the United States.)
The rationale is straightforward. The Convention seeks to deter international child abduction by discouraging unilateral self-help, forum shopping, and conduct designed to remove the child from the jurisdiction best suited to determine custody. Accordingly, United States courts have consistently recognized that the Convention’s exceptions should generally be interpreted narrowly so as not to reward wrongful conduct.
In the United States, the Hague Convention is implemented through the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–9011, which establishes the procedures and burdens of proof governing Hague Convention return proceedings before state and federal courts.
One of the six exceptions to the return remedy is the one-year-and-settled defense, contained in Article 12 of the Hague Convention.
The one-year period is often misunderstood. Filing a Hague Convention petition after one year does not bar the petition or automatically prevent the child’s return. Rather, it permits the respondent to raise an additional affirmative defense under Article 12. Whether that defense ultimately succeeds depends upon the particular facts of the case and the court’s evaluation of whether the child has genuinely become well-settled in the new environment. If the one-year period has passed, the child is well-settled, but the taking parent’s conduct was blatant or egregious, U.S. courts treat the taking parent’s bad-faith behavior in two specific ways: it can be used to mathematically dismantle the “well-settled” defense itself, or it can trigger the court’s overarching equitable power to order a return anyway.
Article 12 provides that where judicial or administrative proceedings are commenced more than one year after the wrongful removal or wrongful retention of the child, the court is not bound to order the child’s return if it is demonstrated that the child is now settled in his or her new environment.
Accordingly, the defense has two essential components:
- The return proceedings must have commenced more than one year after the wrongful removal or wrongful retention; and
- The respondent must establish that the child is now well-settled in the new environment.
The respondent bears the burden of proving the well-settled defense by a preponderance of the evidence, pursuant to ICARA, 22 U.S.C. § 9003(e)(2)(B). This is a lower burden than the clear and convincing evidence standard applicable to certain other Hague Convention defenses, such as the grave-risk exception under Article 13(b).
Importantly, even where the respondent successfully establishes the well-settled defense, Article 18 of the Convention preserves the court’s discretion to order the child’s return if doing so remains consistent with the Convention’s objectives. In exercising that discretion, courts may consider the purposes of the Convention, including deterring international child abduction, whether the taking parent engaged in deceptive or obstructive conduct, and whether ordering return would nevertheless best serve the treaty’s objective of ensuring that custody disputes are resolved by the courts of the child’s habitual residence.
(The factors courts consider in determining whether a child is “well-settled” are discussed in a separate article.)
When Does the One-Year Period Begin?
One question that naturally arises is when the one-year period begins to run.
The answer depends upon whether the case involves a wrongful removal or a wrongful retention.
In cases involving a wrongful removal, the one-year period ordinarily begins on the date the child is wrongfully removed from the country of habitual residence.
Wrongful retention cases are often more nuanced. In such cases, the one-year period generally begins when the agreed-upon temporary stay expires, or when the taking parent clearly and unequivocally communicates—either expressly or through conduct—that the child will not be returned despite the left-behind parent’s custody rights. Depending upon the circumstances, the agreed return date itself, an express refusal to return the child, or conduct unequivocally demonstrating an intention to retain the child permanently may each mark the commencement of the one-year period.
Although whether proceedings were commenced within one year often becomes strategically important, proving compliance with the one-year period is technically not part of the petitioner’s prima facie case. Rather, the passage of one year becomes relevant only if the respondent seeks to invoke the well-settled defense under Article 12.
When Are Proceedings Commenced?
Another important question concerns when proceedings are deemed to have commenced.
For purposes of Article 12, proceedings in the United States commence when a Hague Convention petition is filed before a state or federal court.
The filing of an application with the Central Authority of the requested State does not, by itself, constitute the commencement of judicial proceedings or stop the running of the one-year period. Consequently, delays between filing a Central Authority application and commencing judicial proceedings may prove significant where the one-year period is approaching expiration.
Equitable Tolling is Not Available
For many years, U.S. courts were divided over whether the one-year period could be equitably tolled where the abducting parent deliberately concealed the child from the left-behind parent.
That question was definitively resolved by the United States Supreme Court in Lozano v. Montoya Alvarez, 572 U.S. 1 (2014).
In Lozano, the Supreme Court held that equitable tolling does not apply to Article 12 of the Hague Convention. The Court reasoned that the Convention’s one-year period is not a traditional statute of limitations but rather a treaty-based condition governing the availability of the well-settled defense. Consequently, courts may not suspend or extend the one-year period simply because the abducting parent concealed the child or otherwise prevented the prompt filing of a return petition.
Accordingly, earlier decisions, including those of the Eleventh Circuit recognizing equitable tolling under certain circumstances, no longer reflect the governing law in the United States.
Importantly, however, Lozano does not reward concealment, nor does it guarantee that an abducting parent who successfully delays proceedings beyond one year will prevail.
Instead, the Supreme Court explained that concealment remains highly relevant to the court’s determination of whether the child has actually become “well-settled.” A child who has been hidden, frequently relocated, living under an assumed identity, isolated from the community, or otherwise prevented from developing stable community ties may be far less likely to satisfy the well-settled standard contemplated by Article 12.
Moreover, even where a child is ultimately found to be well-settled, Article 18 continues to preserve the court’s discretionary authority to order the child’s return where doing so furthers the Convention’s objectives.
Does Filing After One Year Mean the Left-Behind Parent Will Lose?
Absolutely not.
The expiration of the one-year period merely changes the issues before the court. It does not create an automatic victory for the taking parent.
First, the respondent still bears the burden of proving that the child is genuinely well-settled. Courts undertake a fact-intensive inquiry that extends well beyond whether the child is attending school or appears happy. Factors such as the child’s age, the stability of the child’s residence, school attendance and performance, immigration status, family and community ties, participation in extracurricular activities, and the permanence of the child’s living arrangements may all be relevant. Evidence of concealment, repeated moves, unstable housing, or an uncertain immigration status may significantly undermine the respondent’s claim that the child is truly settled.
Second, Article 18 preserves the court’s discretion to order the child’s return even where the well-settled defense has been established. Although this discretion is exercised sparingly, courts remain empowered to consider whether ordering return would better serve the Convention’s fundamental objective of deterring international child abduction and ensuring that custody disputes are decided by the courts of the child’s habitual residence.
Third, in wrongful retention cases, disputes frequently arise regarding the actual date on which the retention became wrongful. Because the one-year period generally begins only when the agreed temporary stay expires or when the taking parent’s intention not to return the child became clear and unequivocal to the left-behind parent, the parties may vigorously dispute when the clock actually started. Where the evidence demonstrates that the left-behind parent was misled, negotiations remained ongoing, or the taking parent’s intentions remained ambiguous for a period of time, the commencement of the one-year period may be correspondingly delayed.
Practical Considerations
From a practical standpoint, the most significant factor in many Hague Convention cases is speed.
The sooner judicial proceedings are commenced, the less likely it is that the well-settled defense will become available.
Unfortunately, delays often occur for reasons entirely unrelated to the merits of the case. Left-behind parents frequently spend valuable time locating experienced Hague Convention counsel, assembling an international legal team, gathering evidence, translating documents, securing funding for litigation, coordinating with Central Authorities, locating the child, or simply navigating the profound emotional trauma that accompanies international parental child abduction.
While none of these practical realities alters the operation of Article 12, they frequently explain why otherwise diligent parents may find themselves litigating beyond the one-year period.
Conclusion
The one-year and well-settled defense is among the most significant defenses available under the Hague Convention, but it is frequently misunderstood.
The expiration of one year does not bar a Hague Convention petition, nor does it automatically prevent the child’s return. Rather, it shifts the focus of the litigation to whether the child has become genuinely settled in the new environment and whether the court should nevertheless exercise its discretion under Article 18 to order the child’s return.
For left-behind parents, prompt action remains essential. Every day that passes before judicial proceedings are commenced has the potential to complicate the litigation, expand the available defenses, and increase the uncertainty surrounding the ultimate outcome. Acting swiftly, both legally and strategically, remains one of the most important steps in maximizing the likelihood of a successful Hague Convention return petition.