Monday, December 4, 2017
Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) [Thailand] [Federal & State Judicial Remedies] [Retention] [Accession]
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.