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Marks v. Hochhauser

United States Court of Appeals, Second Circuit

November 29, 2017

Ross Edward Marks, acting on behalf of infant children, SM, AM, and BM, Petitioner-Appellant,
v.
Karen Hochhauser, Respondent-Appellee.

          Argued: June 15, 2017

         On Appeal from the United States District Court for the Southern District of New York

         Appeal from a judgment of the United States District Court for the Southern District of New York (Karas, J.), dismissing a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of three children from New York to Thailand. The district court held that the petition fails to state a claim for wrongful retention because (1) retention for these purposes is a singular and not a continuing act, and (2) the retention here occurred before the treaty became operable as to the United States and Thailand.

          Kiersten M. Schramek (Jessica H. Ressler, on the brief), Ressler & Associates, White Plains, New York, for Petitioner-Appellant.

          Robert D. Arenstein, Law Offices of Robert D. Arenstein, New York, New York (Richard Min, Camhi & Min LLC, New York, New York, on the brief), for Respondent-Appellee Karen Hochhauser.

          Before: Winter, Calabresi, and Chin, Circuit Judges.

          CHIN, CIRCUIT JUDGE

         In this case, petitioner-appellant Ross Edward Marks seeks relief under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, as implemented by the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001 et seq., for the allegedly wrongful retention in the United States of the parties' minor children, S.M., A.M., and B.M. (the "Children"), by their mother, respondent-appellee Karen Hochhauser. Hochhauser and the Children resided in Thailand, but while they were in New York in 2015 on what was supposed to be a three-week trip, Hochhauser advised Marks that she and the Children would not be returning to Thailand.

         Marks brought this action below under the Convention for the return of the Children. The district court dismissed his petition, holding that (1) retention for these purposes is a singular and not a continuing act, and (2) the retention here occurred before the treaty became operable as to the United States and Thailand. Marks appeals. We affirm.

         BACKGROUND

         The parties are American citizens who met in Asia and were married in China in 1999. They 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. In December 2015, the Thai Court of Appeals accepted Marks's appeal of the lower court's grant of sole custody to Hochhauser.

         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; indeed, she represented that she had booked their return flights. On October 7, 2015, however, 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.

App. 81. 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." App. 63.

         Marks filed this 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.

         On November 2, 2016, after hearing oral argument, the district court granted the motion to dismiss the petition, ruling from the bench. The district court 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. The district court further 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.[1] The district court thus held that the retention occurred before the Convention entered into force between the two countries. The district court entered judgment on November 7, 2016, granting the motion to dismiss the petition.

         This appeal followed.

         DISCUSSION

         We review the district court's interpretation of the Convention de novo and its factual findings for clear error. Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013); Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001). The district court's application of the Convention to the facts ...


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