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Case Commentary: Jones v. Fairfield (In re ICJ), 13 F.4th 753 (9th Cir. 2021)

James D. Garbolino
November 17, 2022

Grave Risk | Exercise of Custody Rights | Undertakings | Ameliorative Measures

This case involved an appeal of a district court’s denial of a petition for return. The Ninth Circuit addressed the following questions: (1) Does a parent’s decision to discontinue financial support constitute a failure to exercise custody rights? (2) Does a grave-risk finding require consideration of alternative measures or undertakings that allow a child’s safe return? (3) What level of pandemic-related travel concern constitutes a grave risk?


The Ninth Circuit reversed the district court’s denial of the petition for return.


After marital problems arose, the mother removed the couple’s two-year old child from France, where the child was born, to the United States. The mother stated that father had been viewing child pornography alone and in the presence of their child. The father, a British citizen, was convicted in the United States for possessing child pornography and, as a result, was deported from the United States.

In March 2020, the mother confronted the father about his fixation with child pornography. He became aggressive, destroyed personal property, screamed at her, and on one occasion raped her. The father denied the mother’s allegations. Between April and May 2020, the father threatened to kill himself if the mother left him. When the mother asked the father to move from the family residence in May, the father hung himself from a tree at their home, only to be rescued and cut down by neighbors. After the suicide attempt the mother moved from the family residence with the child, and in June 2020, took the child to the United States to visit relatives. Upon their return, the mother and child lived temporary housing. During this period the father visited the child, and with the mother’s consent, kept the child overnight on several occasions.

In August 2020 the marriage further deteriorated, and the father initiated a divorce proceeding in France. The mother moved to Northern France with the child without disclosing their location. According to the mother, the father ceased all financial support for her and their child, resulting in their having to live in homeless shelters. Three weeks before a scheduled divorce hearing in French courts, the mother left France with the child and relocated to Washington State where she filed for divorce in November 2020. A little over a month later, the father filed his petition for the return of the child in the Eastern District of Washington.

The district court denied the father’s petition for return finding that (1) the father’s failure to financially support the child amounted to a failure to exercise his custody rights; (2) the father’s instability created a grave risk should the child be ordered returned; and (3) because of the pandemic, the child should not be returned to France for a custody determination.


The court of appeal reversed the district court’s ruling on all three issues.

Exercise of Custody Rights. The district court found that France was the child’s habitual residence but concluded that the mother’s removal of the child was not wrongful because the father was not exercising his custody rights due to his failure to support the child. The Ninth Circuit disagreed, noting that to establish the non-exercise of custody rights, there must be a showing that “a parent has clearly and unequivocally abandoned a child.”[1] Here, after the parties’ separation, the father had consistent visits with the child, including overnight. The interruption of visits was precipitated by the mother’s removal of the child to northern France in August 2020. The father’s attorney advised him to cease attempts to initiate further visits with the child while negotiations were pending and before the first scheduled court hearing in France. The court deemed the father’s failure to continue financial support for two-and-a-half months was insufficient to counter his continuous efforts to exercise custody rights.

Failure to Consider Alternative Remedies. Following circuit precedent in Gaudin v. Remis,[2] and the Second Circuit’s opinion in Blondin v. Dubois,[3] the Ninth Circuit reiterated that before denying repatriation of a child based upon a “grave risk” defense, a court must consider alternative remedies that would allow the safe return of the child to the habitual residence. The court also referenced its previous consideration of ameliorative measures or “undertakings” that might be available and enforceable to allow the child’s safe return.[4]

Impact of Travel During a Pandemic. The Ninth Circuit concluded that the district court deemed the COVID-19 pandemic additional evidence of “grave risk” but found no evidence in the record to support this conclusion. The Ninth Circuit did not foreclose consideration of the pandemic on remand but noted that there must be evidence of a pandemic-related “specific current risk.”[5]

[1]. Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); In re ICJ, 13 F.4th 753, slip op. at 5 (9th Cir. 2021).
[2]. 415 F.3d 1028, 1035 (9th Cir. 2005).
[3]. 189 F.3d 240, 249 (2d Cir. 1999).
[4]. See case commentary of Radu v. Shon, 11 F.4th 1080 (9th Cir. 2021), discussing the same issue.
[5]. In re ICJ, 13 F.4th 753, slip op. at 8 (9th Cir. 2021)