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 domest