Case Update (2021): In re ICJ; vacate & remand; actually exercising; grave risk and alternative remedies

On September 15, 2021, the Ninth Circuit Court of Appeals vacated and remanded in the matter of In re ICJ, concluding the District Court erred in denying Mr. Jones' petition for return of his child to France under the Hague Abduction Convention.

To expedite the case, the parties agreed, in a video hearing, to submit all evidence through documents, rather than calling witnesses. The documents submitted by one parent contradicted those submitted by the other in numerous and "material ways," which was never resolved by the trial court. The trial court ruled that (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 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 court also seemingly relied on the pandemic as a reason to not return the child.

The 9th Circuit found three legal errors.

First, cutting off financial support is insufficient to establish that Jones "clearly and unequivocally abandoned the child," which is the stringent requirement to find he was not actually exercising his custody rights. Second, the court, upon a finding of grave risk, did not consider alternative remedies to protect the child if returned to France. Third, there was no evidence in the record to indicate the pandemic was a risk to returning the child.

Since the District Court's opinion, the French courts have rendered a custody decision in the parties' French divorce proceeding, which should, hopefully, be helpful to the D.Ct. on remand.