Marks Ex Rel. SM v. Hochhauser, 876 F.3d 416

Ross Marks and Karen Hochhauser are U.S. citizens who lived with their three children in Thailand; after a Thai divorce trial court granted Hochhauser sole custody, the Thai Court of Appeals later ordered joint custody.
Hochhauser and the children traveled to New York on September 18, 2015 for a visit she said would last three weeks; on October 7, 2015 she emailed Marks that she would remain in the U.S. with the children.
Marks filed a Hague Convention petition in U.S. district court (Southern District of New York) on September 9, 2016 seeking return of the children to Thailand under the Convention and the International Child Abduction Remedies Act.
The district court dismissed, holding (1) "retention" under the Convention is a singular event (occurring here on October 7, 2015), and (2) the Convention did not enter into force between the U.S. and Thailand until April 1, 2016 (after the alleged retention), so the Convention did not apply.
Marks appealed; the Second Circuit affirmed, agreeing retention is a fixed-date event and that Article 38 requires the receiving state to accept an accession before the Convention takes effect between the two states.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "retention" under the Hague Convention is a singular event or a continuing act	Marks: "Retention" is ongoing; wrongful retention continues so the Convention applies if it became effective later	Hochhauser: "Retention" is a discrete act (failure to return when required); the decisive date is when refusal was communicated	Court: Retention is a singular event; here it occurred Oct. 7, 2015 (when Hochhauser announced she would remain in U.S.)
Whether the Convention entered into force between the U.S. and Thailand in 2002 (Thailand's accession) or only after U.S. acceptance in 2016	Marks: Thailand's accession in 2002 made the Convention effective as to the U.S.-Thailand relationship	Hochhauser: Article 38 requires the other Contracting State to accept the accession; the U.S. accepted on Jan. 26, 2016, so effect began Apr. 1, 2016	Court: Article 38 requires acceptance; Convention entered into force between U.S. and Thailand Apr. 1, 2016, so the Oct. 7, 2015 retention predates entry into force

Abbott v. Abbott, 560 U.S. 1 (2010) (treaty interpretation principles; Executive Branch views given weight)
Medellin v. Texas, 552 U.S. 491 (2008) (treaty interpretation begins with text)
Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (elements and application of Convention return remedy)
Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013) (standard of review and Convention background)
Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (Convention interpretation and precedent)