In Marks v.
Hochhauser 2017 WL 5760345 (2d Cir., 2017) the Second Circuit held that for
purposes of the Convention “retention” is a singular and not a continuing act; and
that the Convention does not enter into force until a ratifying state
accepts an acceding state's accession.
The
parties were American citizens who were living in Hong Kong when their three
sons were born, one in 2002 and twins in 2005. In July 2005, the parties and
the children relocated to Bangkok, Thailand. In August 2015, Marks and
Hochhauser were divorced, in Thailand, and the divorce judgment granted
Hochhauser sole custody of the Children. On September 18, 2015, Hochhauser and
the Children traveled to the United States to visit Hochhauser’s ill mother.
Before their departure, Hochhauser represented to Marks and the Thai court that
she and the Children would stay in New York for three weeks and then return to
Thailand on October 10, 2015. On October 7, 2015, Hochhauser sent Marks an
email as follows: “I have made the decision to remain in the United States with
the boys. It is clear to me now that there is no workable solution for us to
live in Thailand. This decision was based upon trying to build a future for
both myself and them, not out of any anger toward you about the past or any
desire to exclude you from their lives. The boys need you to continue to be an
important part of their lives and I will do as much as I can to facilitate
that. Hopefully we can find a way to build a working relationship for their
benefit.” On January 25, 2016, the Thai Court of Appeals vacated the trial
court’s judgment in part and held that Marks and Hochhauser “shall exercise
joint custody of all of their three minor children.”
Marks
filed a petition for the return of the Children to Thailand on September 9,
2016, within one year of the date Hochhauser advised Marks that she and the
Children would not be returning to Thailand. Hochhauser moved to dismiss the
petition, arguing, inter alia, that any wrongful retention of the
Children took place prior to the Convention’s entry into force between the
United States and Thailand. The district court
granted the motion to dismiss the petition. It first concluded that “retention”
is a singular and not a continuing act and that the singular act here occurred
on October 7, 2015, when Hochhauser sent her email to Marks advising that she
and the Children were not returning to Thailand. It then concluded that the
Convention did not enter into force between the United States and Thailand
until April 2016, after the United States accepted Thailand’s accession to the
Convention. The district court held that the retention occurred before the
Convention entered into force between the two countries and entered judgment on
November 7, 2016, granting the motion to dismiss the petition.
The
Second Circuit affirmed. It agreed with the district court that “retention” for these purposes is a singular and not a
continuing act. It concluded that the Convention contemplates that “retention”
occurs on a fixed date. Here, that date was October 7, 2015, when Hochhauser
advised Marks that she would not be returning with the Children to Thailand.
The Second
Circuit observed that Article
35 of the Convention provides that it “shall apply as between Contracting
States only to wrongful removals or retentions occurring after its entry into
force in those States.” Convention, art. 35. Hence, if the removal or retention
occurs before the Convention has entered into force between two States, the
Convention does not apply.
The
Court noted that the Convention does not define “Contracting State,” but
Articles 37 and 38 provide two separate procedures for countries to accept the
Convention. Under Article 37, “[t]he Convention shall be open for signature by
the States which were Members of the Hague Conference of Private International
Law [the ‘CPIL’] at the time of its Fourteenth Session.” Convention, art. 37.
Once a State signs, the Convention must be “ratified, accepted or approved and
the instruments of ratification, acceptance or approval” must be deposited with
the Ministry of Foreign Affairs in the Netherlands. Convention, art. 37. Article
38 provides an acceptance procedure for states that were not members of the
CPIL at the time of its fourteenth session. In lieu of ratification, these
states may “accede” to the Convention. Article 38 explains that: Any other
State may accede to the Convention. ... The accession will have effect only as
regards the relations between the acceding State and such Contracting States as
will have declared their acceptance of the accession. ... The Convention will
enter into force as between the acceding State and the State that has declared
its acceptance of the accession on the first day of the third calendar month
after the deposit of the declaration of acceptance. Convention, art. 38. As
Article 38 makes clear, accession requires the acceptance of other states
before the Convention “will enter into force,” i.e., the accession has
effect only as to Contracting States that “have declared their acceptance of
the accession.” Id.
At
the time the Convention was opened for signature, the United States was a
member of the CPIL and Thailand was not. The United States signed the
Convention in 1981 and ratified it, thereby becoming a Contracting State, in
1988, and the Convention entered into force in the United States on July 1,
1988. See Contracting State Status Table; Souratgar, 720 F.3d at 102 n.5. Thailand acceded to the Convention, pursuant to Article
38, on August 14, 2002, and it entered into force in Thailand on November 1,
2002. Id. The United States
accepted Thailand’s accession to the Convention on January 26, 2016. See
Acceptances of Accessions: Thailand, Hague Conference on Private
International Law,
https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=670
(last visited Sept. 26, 2017) (“Acceptances of Accessions Table”). The first
day of the third calendar month after the United States accepted Thailand’s
accession was April 1, 2016. See id.; Convention, art. 38.
The Court then held that the
Convention does not enter into force until a ratifying state accepts an
acceding state's accession and that Article 35 limits the Convention's
application to removals and retentions taking place after the Convention has
entered into force between the two states involved. Therefore, because the
Convention did not enter into force between the United States and Thailand
until April 1, 2016, after the allegedly wrongful retention of the children in
New York on October 7, 2015, the Convention did not apply to petitioner's claim.
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