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Keywords

contractdivorce
contractrespondentappellantappellee

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Marks on Behalf of SM v. Hochhauser

Facts

Ross Edward Marks and Karen Hochhauser, both American citizens, were married in China and later lived in Thailand where they had three children. In 2015, while on a trip to New York, Hochhauser informed Marks that she would not be returning to Thailand with the children. Following their divorce in Thailand, Marks sought the return of the children under the Hague Convention, claiming wrongful retention. However, the district court ruled that the retention occurred before the Convention was applicable between the U.S. and Thailand.

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.

Issue

Did the district court err in concluding that the mother's retention of the children was a singular act and that the Hague Convention did not apply because the retention occurred before its entry into force between the U.S. and Thailand?

Did the district court err in concluding that retention is a singular event and fixing a particular date of the allegedly wrongful retention because the term 'retention' itself implies ongoing activity?

Rule

Under the Hague Convention, a retention is considered a singular act that occurs on a specific date, and the Convention applies only to wrongful removals or retentions occurring after its entry into force between the contracting states.

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.'

Analysis

The court agreed with the district court's interpretation that retention is a singular act, which occurred when Hochhauser informed Marks that she would not return to Thailand. Since this act took place before the Convention entered into force between the U.S. and Thailand, the court concluded that the Convention did not apply to Marks's petition for the return of the children.

The court agreed with the district court that 'retention' is a singular and not a continuing act.

Conclusion

The court affirmed the district court's dismissal of Marks's petition for the return of the children, concluding that the retention was not governed by the Hague Convention.

The court affirmed the district court's dismissal of Marks's petition for the return of the children, concluding that the retention was not governed by the Hague Convention.

Who won?

Karen Hochhauser prevailed in the case because the court found that the retention of the children occurred before the Hague Convention was applicable, thus dismissing Marks's petition.

Karen Hochhauser prevailed in the case because the court found that the retention of the children occurred before the Hague Convention was applicable, thus dismissing Marks's petition.

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