Kerry Jones v. Cassandra Fairfield

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE ICJ, an infant under the age of No. 21-35159
16,
D.C. No.
2:20-cv-00475-
KERRY JONES, SAB
Petitioner-Appellant,

v. OPINION

CASSANDRA FAIRFIELD,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding

Argued and Submitted August 13, 2021
Seattle, Washington

Filed September 15, 2021

Before: David M. Ebel, * Carlos T. Bea, and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge Ebel

*
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 IN RE ICJ

SUMMARY **

Hague Convention

The panel vacated the district court’s denial of Kerry
Jones’s petition for the return of his child to France under the
Hague Convention on the Civil Aspects of International
Child Abduction, and remanded for further proceedings.

Cassandra Fairfield, the child’s mother, took the child to
the United States. Jones petitioned for the child’s return to
France so that French courts could make a custody
determination. The district court denied the petition on the
alternative grounds that Fairfield did not wrongfully remove
the child, and even if she did, returning the child to France
would present a grave risk.

Agreeing with other circuits, the panel held that the
district court erred as a matter of law in determining that
Jones cutting off financial support was sufficient to establish
that he abandoned the child and thus was not exercising his
custody rights, and that Fairfield’s removal of the child
therefore was not wrongful.

The panel held that the district court further erred in
declining to return the child to France based on a “grave risk”
defense, without first considering whether there were
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.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 IN RE ICJ 3

Finally, the district court erred in relying in part on the
COVID-19 pandemic to deny Jones’s petition because the
record did not include any evidence addressing what specific
pandemic-related risk returning the child to France would
present.

COUNSEL

Robert S. Michaels (argued), Dobrish Michaels Gross LLP,
New York, New York, for Petitioner-Appellant.

Kenneth R. Zigler Jr. (argued) and Joanna L. Puryear
(argued), Zigler Family Law, Spokane, Washington for
Respondent-Appellee.

OPINION

EBEL, Circuit Judge:

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 on the Civil Aspects of International
Child Abduction (“Hague Convention”), seeking an order
returning the child to France so French courts could decide
custody. The Hague Convention generally requires the
prompt return of a child who is wrongfully removed from
her country of “habitual residence” during a domestic
dispute in order to allow that country to make necessary
4 IN RE ICJ

custody determinations. Concluding the district court erred
in denying Jones’s petition for ICJ’s return to France, we
VACATE the district court’s decision and REMAND for
further proceedings.

I. BACKGROUND

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. 1 The district court did not
expressly resolve those material factual disputes. Here, we
provide just a thumbnail sketch of the conflicting evidence.

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

1
While Jones’s declaration and verified petition were sworn under
penalty of perjury, it does not appear that Fairfield’s declaration was
sworn. Jones does not raise lack of swearing as a ground for reversal.
 IN RE ICJ 5

while ICJ was in the room. 2 Fairfield further discovered that
Jones had downloaded hundreds of files of child
pornography.

Jones denies all of this. He does, 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 asserts Jones never told her about this conviction
and she only discovered it sometime after the couple
separated. Jones contends 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 (E.R. 250 ¶ 11), 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 denies that it shattered near either
Fairfield or ICJ. He denies 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, 3 Jones hung
himself from a tree outside their home. He survived after
Fairfield and several neighbors cut him down. While Jones
2
Fairfield has not claimed nor provided any evidence for the idea
that Jones affirmatively showed ICJ child pornography.
3
The couple owned a family home plus three nearby properties that
they rented to vacationers.
6 IN RE ICJ

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 contends 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. Fairfield
initially stayed with friends and then moved with ICJ into an
Airbnb. Although Fairfield and Jones continued to
communicate with each other via texts, Fairfield did not tell
Jones where she and ICJ were.

Fairfield asserts that, at this same time, Jones left the
family residence and began living in a tent in order to hide
from French authorities because Jones feared they had
discovered his child pornography. Jones denies this this was
the reason he left the residence.
 IN RE ICJ 7

Jones filed a police report seeking help finding Fairfield
and ICJ, and he hired an attorney to pursue criminal charges
against Fairfield for absconding with their daughter.
Fairfield, in turn, unsuccessfully sought police protection
from Jones. Both Jones and Fairfield hired divorce lawyers;
the French courts set a hearing in the divorce proceeding for
November 17, 2020. 4

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 contends that she
was forced to live with ICJ in homeless shelters. While
Jones does not dispute that Fairfield and ICJ lived for a
period of time in homeless shelters, he denies 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. Although Fairfield feared
that Jones would come looking for her and ICJ, Jones’s
attorney directed him not to contact Fairfield or to try to see
ICJ. The couple’s divorce attorneys then began to negotiate
visitation for Jones. To facilitate those negotiations, Jones
eventually agreed that any visitation be supervised.

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

4
The record does not reflect the status of the French divorce
proceedings.
8 IN RE ICJ

on October 29, 2020. 5 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.6
See 22 U.S.C. § 9003(b). The district court, on January 28,
2021, denied Jones’s petition, and his motion for
reconsideration. We have jurisdiction to review those
decisions under 28 U.S.C. § 1291.

II. THE HAGUE CONVENTION

We begin with a quick overview of the Hague
Convention. “[I]n 1980 the Hague Conference on Private
International Law adopted the Convention” “[t]o address
‘the problem of international child abductions during
domestic disputes.’” Lozano v. Montoya Alvarez, 572 U.S.
1, 4 (2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8 (2010)).
“The Convention states two primary objectives: ‘to secure
the prompt return of children wrongfully removed to or
retained in any Contracting State,’ and ‘to ensure that rights

5
Fairfield says her family sent her money for the trip to the United
States, while Jones contends Fairfield instead used the couple’s joint
funds.
6
Both the United States and France are signatories bound by the
Hague Convention. See U.S. Hague Convention Treaty Partners, Travel.
State.Gov, https://travel.state.gov/content/travel/en/International-Parent
al-Child-Abduction/abductions/hague-abduction-country-list.html (last
visited July 7, 2021).
 IN RE ICJ 9

of custody and of access under the law of one Contracting
State are effectively respected in the other Contracting
States.’” Id. at 4–5 (quoting Hague Convention on the Civil
Aspects of International Child Abduction (“H.C.”), art. 1,
Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-
11). “It is the Convention’s core premise that ‘the interests
of children . . . in matters relating to their custody’ are best
served when custody decisions are made in the child’s
country of ‘habitual residence.’” Monasky v. Taglieri,
140 S. Ct. 719, 723 (2020) (quoting H.C., Preamble).

“To that end, the Convention ordinarily requires the
prompt return of a child wrongfully removed or retained
away from the country in which she habitually resides.” Id.
(citing H.C., Art. 12). The removal or retention is wrongful
if it both violates one of the parent’s custody rights provided
by the laws of the child’s country of habitual residence and
that parent is actually exercising those custody rights at the
time of removal. H.C., Art. 3.

“The Convention’s return requirement is a ‘provisional’
remedy that fixes the forum for custody proceedings. . . .
Upon the child’s return, the custody adjudication will
proceed in that forum.” Monasky, 140 S. Ct. at 723.

“The return remedy is not absolute,” however. Lozano,
572 U.S. at 5. The Convention recognizes several “narrow”
defenses to, or exceptions from, returning the child to her
country of habitual residency. 22 U.S.C. § 9001(a)(4); see
also Lozano, 572 U.S. at 6. Relevant here, Article 13
excuses a court from ordering a child’s return where “there
is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the
child in an intolerable situation.” H.C., Art. 13(b); see also
Lozano, 572 U.S. at 5. Even where the court finds such a
grave risk, however, the district court still has discretion to
10 IN RE ICJ

order the child’s return. See Radu v. Shon, —F.4th —, 2021
WL 3883013, at *3 (9th Cir. Aug. 31, 2021).

Where the Convention’s return remedy is appropriate,
“the Convention instructs contracting states to ‘use the most
expeditious procedures available’ to return the child to her
habitual residence.” Monasky, 140 S. Ct. at 723–24 (quoting
H.C., Art. 2. and citing H.C., Art. 11 (prescribing six weeks
as normal time for return-order decisions)).

The United States ratified the Hague Convention in
1988, and Congress implemented the Convention through
the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. §§ 9001–11. 7 See Lozano, 572 U.S.
at 6.

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, 2021 WL 3883013, at *3.

III. DISCUSSION

In this case, the district court denied Jones’s Hague
Convention petition to return ICJ to France, ruling
alternatively: 1) Fairfield did not wrongfully remove ICJ
from France because Jones, at that time, was not actually
exercising his custody rights to ICJ because he cut off
7
Congress originally codified ICARA at 42 U.S.C. §§ 11601–10,
see Lozano, 572 U.S. at 6, but later transferred it to Title 22.
 IN RE ICJ 11

financial support for the child. But 2) even if Fairfield
wrongfully removed ICJ, returning her to France would
present a grave risk of placing the child in an intolerable
situation, in light of Jones’s instability. The district court
further relied on the pandemic to support the court’s decision
not to return ICJ to France for a custody determination.

We address the three legal errors in the district court’s
rulings that require us 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 clearly and
unequivocally abandoned the child, the showing required for
deeming a parent not to be exercising custody rights. 2) The
district court further 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 also 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.

A. Fairfield wrongfully removed ICJ from France.

The Hague Convention requires that a “child wrongfully
removed from her country of ‘habitual residence’ ordinarily
must be returned to that country.” Monasky, 140 S. Ct.
at 722–23 (emphasis added); see H.C., Arts. 3, 12.

The removal or retention of a child is to be
considered wrongful where—
12 IN RE ICJ

a) it is in breach of rights of custody
attributed to a person . . . , either jointly or
alone, under the law of the State in which the
child was habitually resident immediately
before the removal or retention; and

b) at the time of the removal . . . those rights
were actually exercised, either jointly or
alone, or would have been so exercised but
for the removal . . . .

H.C., Art. 3 (emphasis added).

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. 8 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.

The Hague Convention does not explain how one
“exercise[s]” custodial rights. See Friedrich v. Friedrich,
78 F.3d 1060, 1065 (6th Cir. 1996). But 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. See id. at 1066; see
8
In her answering brief, Fairfield states in a single phrase that ICJ’s
habitual residence is, instead, Spokane, Washington, without any further
argument. That perfunctory assertion is insufficient to raise an adequate
challenge to the district court’s determination that France is ICJ’s
country of habitual residence.
 IN RE ICJ 13

Asvesta v. Petroutsas, 580 F.3d 1000, 1017–18 (9th Cir.
2009) (endorsing this standard); see also Lopez v. Bamaca,
455 F. Supp. 3d 76, 82 & n.8 (D. Del. 2020) (noting
“virtually every circuit” follows Friedrich’s abandonment
test, citing cases). The parties here agree 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.

Id. at 1066 (citing 42 U.S.C. § 11601(b)(4), now found at
22 U.S.C. § 9001(b)(4) (“The Convention and this chapter
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying
child custody claims.”)).

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) (stating that petitioner had burden of proving
wrongful removal); H.C., Art. 3 (listing as one element of
wrongful removal proof that petitioner was exercising his
custody rights). Jones’s burden, however, was “minimal,”
Asvesta, 580 F.3d at 1018, and he clearly met it here.
14 IN RE ICJ

The record indicates 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. Cf. Stirzaker v. Beltran,
No. CV09-667-N-EJL, 2010 WL 1418388, at *5–6 (D.
Idaho April 6, 2010) (unreported) (holding father was
actually exercising his custody rights, even though he
acquiesced to his attorney’s advice to move out of the family
home and not have contact with the family after the mother
filed criminal charges against him, where before that the
father had been involved in the child’s care). It was while
these negotiations were ongoing, and just a few weeks before
the first hearing in the French divorce proceeding was to
occur, that Fairfield left France with ICJ. Jones’s actions
seeking to establish visitation belie any claim that he clearly
and unequivocally abandoned ICJ. See Walker v. Walker,
701 F.3d 1110, 1121–22 (7th Cir. 2012) (noting father’s
letter requesting specific visitation times “can hardly be
characterized as indifferent to custody issues”).

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. See H.C., Art. 13(a)
(recognizing this defense to return); 22 U.S.C.
 IN RE ICJ 15

§ 9003(e)(2)(B) (indicating respondent has to prove an
Article 13(a) defense by a preponderance of the evidence).
Even accepting Fairfield’s disputed assertion that Jones cut
off financial support to Fairfield and ICJ for two and one-
half months, Fairfield has not shown that Jones clearly and
unequivocally abandoned ICJ.

Other courts have reached the same conclusion under
circumstances similar to these, where a parent with custody
rights tries to maintain contact with a child after the other
parent leaves, even though that parent stops financial support
for short periods of time. In Walker, for example, the
Seventh Circuit addressed a situation where a U.S. citizen
and an Australian citizen moved to Australia, had a family,
and lived there for 12 years. 701 F.3d at 1114. The mother
took the children to the United States for an extended visit,
then decided they would remain in America, where she filed
for divorce. Id. at 1114–15. The Seventh Circuit held that
the father—who remained in Australia and briefly stopped
providing financial support just before the mother’s
wrongful retention of the children in the United States—was
actually exercising his custody rights, where he contacted
the children weekly via Skype and his Australian divorce
attorney sent a letter proposing specific visitation dates. Id.
at 1115, 1121–22. In light of that regular contact, and efforts
to obtain specific visitation rights, the Seventh Circuit
declined to find clear and unequivocal abandonment based
solely on a brief lack of financial support. Id. at 1121–22.
In reaching that conclusion, the Seventh Circuit noted that

[n]either the district court nor [the mother]
identifies any case in which a court has found
abandonment based on a lack of financial
support, let alone a case that finds that a
parent may forfeit his rights under the
16 IN RE ICJ

Convention by failing to send money to the
abducting spouse even as he works actively
to have the children returned.

Id. at 1122. The Seventh Circuit further noted

that whether one parent is required to pay
support to the other is an issue on the merits
of a divorce proceeding, and we are thus wary
of allowing the presence or absence of
financial support to factor too prominently in
the analysis of the exercise of custody rights
at the time of the removal or retention.

Id.; cf. Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014, 1023–25
(N.D. Ill. 2011) (holding father was actually exercising his
custody rights where he visited the child and “infrequently”
“provided some monetary support”); In re Polson¸
578 F. Supp. 1064, 1067, 1072 (S.D. Ill. 2008) (holding
father was actually exercising his custody rights where he
maintained contact with the child and continued to support
the mother and child until the mother filed for divorce).

Similarly, in Baxter v. Baxter, the Third Circuit held that
a father was actually exercising his custody rights, even
though he withheld financial support for “a few weeks”
while mother and child visited the United States from
Australia and before the mother informed the father she
intended to stay in the United States. 423 F.3d 363, 369–70
(3d Cir. 2005). In that case, as in our case, the family had
lived together as a family in Australia before mother and
child visited America and while they were together the
family continued to support the family financially. See id.
at 370. See also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F. 3d
259, 277 (3d Cir. 2007) (noting “very little” is required to
 IN RE ICJ 17

show parent is actually exercising custody (quoting In re
Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006))).

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.)). Here, then, even assuming that Jones
cut off Fairfield and ICJ financially for two and one-half
months after Fairfield took ICJ to northern France, that is
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 is 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.

Ordinarily, the Hague Convention requires the return of
a child wrongfully removed from her country of habitual
residence, subject only to a few narrow exceptions. See
22 U.S.C. § 9001(a)(4). Here, 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. As we
explain next, 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, 2021 WL 3883013, at *3–4 & *3 n.2.
18 IN RE ICJ

B. The District Court failed to consider whether French
courts could mitigate any grave risk to ICJ if she
returns to France.

Fairfield had the burden of proving a “grave risk”
defense under Article 13(b) by clear and convincing
evidence. See 22 U.S.C. § 9003(e)(2). The district court
determined that Fairfield had met her burden, ruling:

Here, the Court finds that if the child were
returned to France there is a grave risk that
their return would place the child in an
intolerable situation. Although Jones
attempts to persuade the Court that his
domestic life is stable, it is undisputed that
Jones attempted suicide to coerce Fairfield
into staying, threatened to blackmail her, and
cut off financial support. Also, the Court
cannot ignore the allegations of Jones
viewing child pornography in the presence of
the child. While most of these actions were
directed at Fairfield, the Court is concerned
they reflect instability on the part of Jones
that would place the child in an intolerable
situation.

(E.R. 15–16 (footnote omitted).)

Although Jones disputes the district court’s “grave risk”
determination, “[w]e need not reach that issue . . . because
. . . , even if such risk existed, the district court erred in
failing to consider alternative remedies by means of which
[ICJ] could be transferred back to [France] without” placing
her in an intolerable situation. Gaudin v. Remis, 415 F.3d
1028, 1035 (9th Cir. 2005). This circuit requires that,
“before denying the return of a child because of a grave risk
 IN RE ICJ 19

of harm, a court must consider alternative remedies that
would ‘allow both the return of the [child] to [her] home
country and [her] protection from harm.’” Id. (quoting
Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999)).
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.” Id.
at 1037 (emphasis added). 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.” Zaragoza Gutierrez v. Juarez, No. CV-17-
02158-PHX-GMS, 2017 WL 3215659, at *5 (D. Ariz. July
28, 2017) (citing Mozes v. Mozes, 239 F.3d 1067, 1086 n.58
(9th Cir. 2001), abrogated on other grounds by Monasky,
140 S. Ct. at 723, 725–26, (addressing standard for
determining child’s country of “habitual residence”), and
Friedrich, 78 F.3d at 1069 (6th Cir.)).

We, therefore, remand so the district court can consider
the possibility that alternative remedies exist and could
permit returning ICJ to France for a custody determination.
On remand the district court might consider, for example,
whether ICJ can be safely returned to France in the custody
of her mother, or in a third party’s custody. See Gaudin,
415 F.3d at 1037; see also Blondin, 189 F.3d at 249 (2d Cir.)
(suggesting similar possibilities after noting that granting
father’s Hague Convention petition “would not . . .
invariably entail turning the children over to his custody”).
Jones suggested similar possibilities to the district court. On
remand, “[p]erhaps the court would deem one of these
undertakings appropriate, or another, or perhaps it would
conclude that it would be impossible to return [ICJ] to
20 IN RE ICJ

[France] without placing [her] at risk. We do not in any way
prejudge the district court’s decision.” 9 Gaudin, 415 F.3d
at 1037.

This court has recently 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,
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) (“A potential grave risk of harm can, at times,
be mitigated sufficiently by the acceptance of undertakings
and sufficient guarantees of performance of those
undertakings.”); see Radu, 2021 WL 3883013, at *4; see
also, e.g., Saada v. Golan, 930 F.3d 533, 539–40 (2d Cir.
2019) (discussing potential difficulties in enforcing
undertakings meant to ameliorate a grave risk to the child,
citing cases), petition for cert. filed, (U.S. Jan. 21, 2021)
(No. 20-1034). The district court “need[s] to determine
whether and how the alternative remedy is likely to be
performed.” Radu, 2021 WL 3883013, at *4.

“We are bound, therefore, to remand for the district court
to determine whether any such remedy is possible. That
inquiry . . . is inseparably bound up with the question [of]
whether a grave risk . . . exists in the first place.” Gaudin,
9
See generally Baran v. Beaty, 526 F.3d 1340, 1349–51 (11th Cir.
2008) (discussing concept of “undertakings,” or alternative remedies, as
a possible means of protecting a child from a “grave risk” when ordering
his returned to his country of habitual residence for a custody
determination).
 IN RE ICJ 21

415 F.3d at 1036. Those determinations should be made “in
light of circumstances as they exist in the present.” Id.
During oral argument, the parties indicated that French
courts have now made some sort of custody decision in the
parties’ French divorce proceedings. On remand, that
information may be helpful to inform the district court’s
determination as to whether French courts would be able to
protect ICJ upon her return to France for a custody
determination. See also Blondin, 189 F.3d at 249 (2d Cir.)
(remanding so district court could further consider “the
range of remedies that might allow both the return of the
children to their home country and their protection from
harm, pending a custody award in due course by a French
court with proper jurisdiction”). Any “alternative remedy
must significantly reduce, if not eliminate, the grave risk of
harm to” ICJ. Radu, 2021 WL 3883013, at *4.

C. The district court also erred in relying on the
COVID-19 pandemic.

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.” (E.R. 16.) It appears 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). See
Chambers v. Russell, No. 1:20CV498, 2020 WL 5044036,
at *14 (M.D.N.C. Aug. 26, 2020) (discussing pandemic in
context of “grave risk” defense). That was error because
there is simply no evidence in the record addressing whether
COVID-19 would present a “grave risk” to ICJ’s health if
she returned to France. See Filho v. de Albuquerque,
No. 1:20-CV-01421-RBJ, 2020 WL 9455201, at *9 (D.
Colo. Aug. 21, 2020) (rejecting “grave risk of harm” defense
22 IN RE ICJ

based in part on argument that it was safer in Colorado than
in Brazil during the pandemic, where there was no evidence
to support that assertion and “[t]he Court has no basis to
speculate that reasonable and necessary precautions will not
be taken to protect [the child] from the virus upon her return
to Brazil”); see also Chambers, 2020 WL 5044036, at *14
(holding “COVID-19 does not satisfy the Grave-Risk
Defense”). See generally Nunez v. Ramirez, No. CV07-
01205-PHX-EHC, 2008 WL 898658, at *5 (D. Ariz. Mar.
28, 2008) (noting “[p]roof of grave risk of harm requires
‘specific evidence of potential harm’ to children” (quoting
Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995)). On remand,
the district court can consider any evidence presented on any
specific current risk presented to ICJ by the ongoing
pandemic. See Gaudin, 415 F.3d at 1036 (directing district
court, on remand, to consider existence of any possible
remedies to any grave risk presented to the child “in light of
circumstances as they exist in the present”); see also id. at
1037.

IV. CONCLUSION

For the foregoing reasons, we VACATE the district
court’s decision to deny Jones’s petition seeking ICJ’s return
to France and REMAND for further proceedings consistent
with this opinion. “Consistent with the goals of the
Convention, this litigation should conclude as quickly as
possible.” Radu, 2021 WL 3883013, at *7.