Kerry Jones v. Cassandra Fairfield
13 F.4th 753
| 9th Cir. | 2021Background
- Jones (British) and Fairfield (U.S.) married and lived in France; their daughter ICJ was born and habitually resided in France.
- After marital breakdown, Jones filed for divorce in France; Fairfield took ICJ to the United States on October 29, 2020 without Jones’s consent.
- Jones filed a Hague Convention petition in U.S. district court seeking prompt return of ICJ to France for custody proceedings; the district court denied the petition.
- The district court found (a) Jones had not been "actually exercising" custody rights because he allegedly cut off financial support (abandonment), and (b) Article 13(b) grave-risk exception applied (citing Jones’s instability and alleged pornography/viewing allegations), also citing COVID-19 as an added concern.
- The Ninth Circuit vacated and remanded, ruling the district court: misapplied the abandonment standard; failed to consider alternative remedies before denying return on grave-risk grounds; and improperly relied on the pandemic without record evidence.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (Fairfield) | Held |
|---|---|---|---|
| Whether removal was "wrongful" because petitioner was "actually exercising" custody rights | Jones: He was exercising custody — frequent contact, overnight stays, requests for visitation, and legal efforts to secure access | Fairfield: Jones had cut off financial support and thus effectively abandoned custody rights | Held: Reversed — Jones met the minimal showing; a temporary cut-off of support alone does not constitute "clear and unequivocal" abandonment |
| Whether Article 13(b) "grave risk" precludes return without first exploring alternative remedies | Jones: Even if grave risk alleged, court must consider alternative remedies/undertakings (mother custody, third-party custody, enforceable safeguards) to allow return for prompt French custody proceedings | Fairfield: Returning ICJ would expose her to intolerable harm given Jones’s instability and alleged conduct | Held: Reversed and remanded — district court failed to consider alternative remedies and enforceability of undertakings before denying return |
| Whether COVID-19 justified refusal to return the child as a grave risk | Jones: No evidence in the record that COVID-19 posed a grave risk to ICJ upon return to France | Fairfield: Pandemic adds an additional layer of concern for child’s travel/health | Held: Reversed — court may not rely on pandemic without specific evidence; remand to consider current, specific pandemic-related evidence if offered |
Key Cases Cited
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (explains Hague Convention’s objectives and return remedy)
- Monasky v. Taglieri, 140 S. Ct. 719 (2020) (custody decisions belong in child’s habitual residence)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (abandonment test: requires clear and unequivocal abandonment to find lack of "actual exercise")
- Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009) (endorses Friedrich abandonment standard)
- Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005) (court must consider alternative remedies/undertakings before denying return on grave-risk grounds)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (discusses undertakings as means to allow return while protecting child)
- Walker v. Walker, 701 F.3d 1110 (7th Cir. 2012) (brief suspension of support does not alone show abandonment where parent maintains contact)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (similar rule: short-term nonpayment of support insufficient to show abandonment)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (undertakings can mitigate grave risk if sufficiently enforceable)
- Saada v. Golan, 930 F.3d 533 (2d Cir. 2019) (addresses enforcement difficulties for undertakings intended to ameliorate grave risk)