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.