Jones v. Fairfield (In re ICJ)

• Decision Date: 15 September 2021
• Docket Number: No. 21-35159,21-35159
• Citation: 13 F.4th 753
• Parties: IN RE ICJ, an infant under the age of 16, Kerry Jones, Petitioner-Appellant, v. Cassandra Fairfield, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

13 F.4th 753

IN RE ICJ, an infant under the age of 16,Kerry Jones, Petitioner-Appellant,

v.Cassandra Fairfield, Respondent-Appellee.

No. 21-35159

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2021 Seattle, Washington

Filed September 15, 2021

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.

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

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 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 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 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.

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 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, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (quoting Abbott v. Abbott , 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (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 of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’ " Id. at 4–5, 130 S.Ct. 1983 (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 , ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (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, 134 S.Ct. 1224. The Convention recognizes several "narrow...