In re ICJ--- F.4th ----, 2021 WL
4187853 (9th Cir.,2021) Kerry Jones, a British citizen, and his wife
Cassandra Fairfield, a citizen of the United States, married and lived in
France. In 2018, they had a daughter, ICJ, who resided with them, or one of
them, in France until October, 2020. Then, after marital problems arose and
Jones filed for divorce in France, Fairfield took ICJ to the United States,
without the assent of Jones. Jones initiated this litigation under the Hague
Convention. The Ninth Circuit held that the district court erred in denying
Jones’s petition for ICJ’s return to France. It vacated the district court’s
decision and remanded for further proceedings.
In an effort to expedite
these proceedings in the district court, the parties agreed during a video
hearing to present this case through documentary evidence rather than by
calling witnesses. The documentary evidence included declarations by the
parties which contradicted each other in numerous and material ways. The district court did not
expressly resolve those material factual disputes.
Jones
and Fairfield met online in 2013. At that time, Jones was fifty years old, a
British citizen living in France; Fairfield was an eighteen-year-old high
school student in the United States. Fairfield visited Jones several times in
France. The couple eventually married in 2017. Their daughter ICJ was born in
France in August 2018. In January 2020, Jones and Fairfield began talking about
separating. The couple’s marital discord intensified when, in March 2020, Jones
began working full time from their home due to the COVID-19 pandemic. According
to Fairfield: Soon after Jones began working from home, she discovered him
viewing child pornography. On another occasion, she caught Jones watching child
pornography while ICJ was in the room. Fairfield further discovered
that Jones had downloaded hundreds of files of child pornography. Jones denied
all of this. He did, however, acknowledge his prior Texas conviction for
possessing child pornography. Based on that conviction, the United States
removed Jones, a British citizen, and has precluded him from returning.
Fairfield asserted Jones never told her about this conviction and she only
discovered it sometime after the couple separated. Jones contended Fairfield
has known all along about his prior conviction. According to Fairfield, after
she confronted Jones about his child pornography addiction, he “became
aggressive” toward her throwing a glass at her that shattered near Fairfield
and their child, tossing the child’s stroller out a window, flipping a table
over, holding Fairfield down and screaming that she made him crazy and violent,
and on one occasion raping her. Jones acknowledges throwing the glass, but
denied that it shattered near either Fairfield or ICJ. He denied Fairfield’s
other accusations of abuse and rape. Between April 24 and May 1, 2020, while
the family was still living together, Jones numerous times threatened suicide
if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to
another of their houses,
Jones hung himself from a tree outside their home. He survived after Fairfield
and several neighbors cut him down. While Jones spent two days recovering in
the hospital, Fairfield and ICJ moved to another of the family’s properties.
After Jones recovered from the suicide attempt, he “often” visited Fairfield
and ICJ. With Jones’s permission, Fairfield took ICJ to visit Fairfield’s
family in the United States in June 2020. When Fairfield and ICJ returned to
France, in mid-July, they lived in a hotel and then at an Airbnb rental. During
this time, Jones visited ICJ frequently and, with Fairfield’s consent, Jones
kept ICJ overnight on several occasions. In late July 2020, Jones showed
Fairfield a letter he threatened to send to her former employer in Washington,
as well as the Spokane newspaper and the Washington State Patrol, accusing
Fairfield of being a pedophile and mentally ill. Jones contended this was an
attempt to convince Fairfield to be reasonable about the divorce proceedings.
According to Fairfield, when she met Jones at a park on July 30 so Jones could
play with ICJ, Jones threatened to blackmail Fairfield in order to take custody
of ICJ.
Jones then
filed for divorce in France and Fairfield took ICJ to northern France, about
five hours away. Both Jones and Fairfield hired divorce lawyers; the French
courts set a hearing in the divorce proceeding for November 17, 2020. According to Fairfield, in
mid-August, Jones cut off all financial support for her and ICJ by draining the
couple’s joint bank account. After that, Fairfield contended that she was
forced to live with ICJ in homeless shelters. While Jones did not dispute that
Fairfield and ICJ lived for a period of time in homeless shelters, he denied
that he ever cut off Fairfield and ICJ financially and further asserts that
Fairfield and ICJ could have lived at one of the couple’s properties. In
mid-October, at her attorney’s urging, Fairfield revealed her and ICJ’s
location. While negotiations for visitation were ongoing and less than three
weeks before the first hearing scheduled in the French divorce proceedings, Fairfield
left France with ICJ on October 29, 2020. At that time, it had been three
months since Jones had seen ICJ, and two and one-half months since, according
to Fairfield, Jones had cut off any financial support. Fairfield filed for
divorce in Washington State on November 17, 2020. Jones initiated this
litigation in the Federal District Court for the Eastern District of Washington
under the Hague Convention on December 29, 2020, seeking ICJ’s return to France
so French courts could determine custody of ICJ..
The Ninth Circuit observed that in reviewing
a district court’s decision in a Hague Convention case, “we review the district
court’s factual determinations for clear error, and the district court’s application
of the Convention to those facts de novo.” Flores Castro v.
Hernandez Renteria, 971 F.3d 882, 886 (9th Cir. 2020). We review
for an abuse of discretion the district court’s determination of whether to return
a child to her country of habitual residence in the face of a grave risk. See
Radu, ––– F.4th at
––––, 2021 WL 3883013, at *3.”
The Ninth Circuit held that there
were three legal errors in the district court’s rulings that required it to
vacate the district court’s decision and remand: (1) Assuming Jones cut off
financial support for ICJ, the district court erred as a matter of law in
determining that was sufficient to establish that Jones was not actually
exercising his custody rights to ICJ because he cut off financial support for
the child, and clearly and unequivocally abandoned the child, the showing
required for deeming a parent not to be exercising custody rights. (2) The
district court erred in declining to return ICJ to France based on a “grave
risk” defense, without first considering whether there are alternative remedies
available to protect the child and permit her return to France for the period
of time necessary for French courts to make the custody determination. (3) The
district court erred in relying in part on the pandemic to deny Jones’s
petition because the record did not include any evidence addressing what
specific pandemic related risk returning ICJ to France would present.
The Ninth Circuit held that
the district court correctly determined that ICJ’s country of habitual
residence was France, French law provided both Jones and Fairfield with the
right to custody of ICJ, and Fairfield’s leaving France with ICJ breached
Jones’s custody rights.
Nevertheless, the district court ruled that Fairfield’s removing ICJ from
France was not “wrongful” because at the time of removal Jones was not actually
exercising his custody rights, in light of his failure to support ICJ
financially. That was error. Federal circuit courts in the United States have
consistently required a showing that a parent has clearly and unequivocally
abandoned a child before ruling that that parent is not actually
exercising his custody rights. The parties here agreed that this is the
relevant legal standard. In applying this standard, courts “liberally find
‘exercise’ whenever a parent with de jure custody rights keeps, or seeks
to keep, any sort of regular contact with his or her child.” Friedrich, 78 F.3d at
1065 (6th Cir.). Once [a court] determines that the parent exercised
custody rights in any manner, the court should stop—completely avoiding the
question whether the parent exercised the custody rights well or badly. These
matters go to the merits of the custody dispute and are, therefore, beyond the
subject matter jurisdiction of the federal courts. Jones, as the petitioning
parent, had the initial burden of proving by a preponderance of the evidence
that he was actually exercising his custody rights to ICJ at the time Fairfield
removed the child from France. See 22 U.S.C. §
9003(e)(1). Jones’s burden, however, was “minimal,” Asvesta, 580 F.3d at
1018, and he clearly met it here. The
record indicated that, after Jones and Fairfield separated in May 2020, Jones
saw ICJ often, both before and after Fairfield took ICJ to visit Fairfield’s
family in the United States. Jones kept ICJ overnight on several occasions,
with Fairfield’s consent. Jones did not see ICJ after July 30, but it is
undisputed that was because Fairfield took ICJ to northern France and did not
reveal their whereabouts to Jones. Jones presented evidence, including text
messages and emails, indicating that he frequently asked Fairfield to let him
see ICJ, to no avail. When Fairfield revealed her location, in mid-October
2020, Jones attorney directed him not to try to see the child, while the
divorce attorneys negotiated visitation. Because Jones made the required
minimal showing that he was exercising his custody rights, the burden shifted
to Fairfield, as the party opposing returning ICJ to France, to prove by a
preponderance of the evidence that Jones was not actually exercising his
custodial rights. Even accepting Fairfield’s disputed assertion that Jones cut
off financial support to Fairfield and ICJ for two and one-half months,
Fairfield had not shown that Jones clearly and unequivocally abandoned ICJ. The
test Fairfield had to meet to show that Jones had clearly and unequivocally
abandoned ICJ is “stringent.” Baxter, 423 F.3d at
370 (3d Cir.) (citing Friedrich, 78 F.3d at
1065–66 (6th Cir.)). Even assuming that Jones cut off Fairfield and
ICJ financially for two and one-half months after Fairfield took ICJ to
northern France, that was insufficient by itself to establish that Jones
clearly and unequivocally abandoned ICJ, in light of Jones’s continuous efforts
to see the child. Because that was the only reason advanced by the district
court to support its abandonment ruling, the district court erred in concluding
Jones was not exercising his custody rights at the end of October 2020, when
Fairfield took ICJ to the United States. Contrary to the district court’s
decision, then, Fairfield wrongfully removed ICJ from France.
In its alternative ruling, the
district court held that Fairfield had established that one of those narrow
exceptions—when return presents “a grave risk” of placing the child “in an
intolerable situation,” H.C., Art. 13(b)—precludes returning ICJ to France. That
ruling was inadequate because the district court never considered whether there
are “alternative remedies” available that could permit returning ICJ to France
while at the same time protecting her from harm. Radu, ––– F.4th at
–––– – ––––, & –––– n.2, 2021 WL 3883013, at *3–4 & *3 n.2.
). Further, “because the Hague Convention provides only a
provisional, short-term remedy in order to permit long-term custody proceedings
to take place in the home jurisdiction, the grave-risk inquiry should be
concerned only with the degree of harm that could occur in the immediate
future.” The question, then, “is not whether the child would face a risk of
grave harm should she permanently reside in [France], but rather whether
she would face such a risk while courts in [France] make a custody
determination.” The Court remanded so the
district court can consider the possibility that alternative remedies exist and
could permit returning ICJ to France for a custody determination. This court addressed
in detail the relevant considerations that may affect that determination and
what information might be needed, and we identified resources available to aid
the district court, including the United States State Department’s Office of
Children’s Issues. See Radu, ––– F.4th at
–––– – ––––, 2021 WL 3883013, at *4–6. Importantly, part of the
analysis on remand should include consideration of whether any suggested
conditions for ameliorating a grave risk to ICJ would be enforceable or present
“sufficient guarantees of performance” in France. Walsh v. Walsh, 221 F.3d 204,
219 (1st Cir. 2000)
In refusing to return ICJ to
France, the district court noted that “[t]he COVID-19 pandemic provides an
additional layer of concern for the child to travel back to France.” It appeared
from this brief statement that the district court implicitly decided that
sending ICJ back to France during the pandemic presented a “grave risk” of
“expos[ing] the child to physical ... harm,” H.C., 13(b). That was error
because there was simply no evidence in the record addressing whether COVID-19
would present a “grave risk” to ICJ’s health if she returned to France.
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