FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ICJ, an infant under the age of 

16,

KERRY JONES,

Petitioner-Appellant,

v.

CASSANDRA FAIRFIELD,

Respondent-Appellee.

No. 21-35159

D.C. No.

2:20-cv-00475-

SAB

OPINION

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 domestic 

dispute in order to allow that country to make necessary 
4 IN RE ICJ

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 

1 While Jones’s declaration and verified petition were sworn under 

penalty of perjury, it does not appear that Fairfield’s declaration was 

sworn. Jones does not raise lack of swearing as a ground for reversal.
IN RE ICJ 5

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 

2 Fairfield has not claimed nor provided any evidence for the idea 

that Jones affirmatively showed ICJ child pornography.

3 The couple owned a family home plus three nearby properties that 

they rented to vacationers.
6 IN RE ICJ

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.
IN RE ICJ 7

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 

4 The record does not reflect the status of the French divorce 

proceedings.
8 IN RE 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 (2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8 (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 

5 Fairfield says her family sent her money for the trip to the United 

States, while Jones contends Fairfield instead used the couple’s joint 

funds.

6 Both the United States and France are signatories bound by the 

Hague Convention. See U.S. Hague Convention Treaty Partners, Travel. 

State.Gov, https://travel.state.gov/content/travel/en/International-Parent

al-Child-Abduction/abductions/hague-abduction-country-list.html (last 

visited July 7, 2021).
IN RE ICJ 9

of custody and of access under the law of one Contracting 

State are effectively respected in the other Contracting 

States.’” Id. at 4–5 (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, 

140 S. Ct. 719, 723 (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. The Convention recognizes several “narrow” 

defenses to, or exceptions from, returning the child to her 

country of habitual residency. 22 U.S.C. § 9001(a)(4); see 

also Lozano, 572 U.S. at 6. Relevant here, Article 13 

excuses a court from ordering a child’s return where “there 

is a grave risk that his or her return would expose the child 

to physical or psychological harm or otherwise place the 

child in an intolerable situation.” H.C., Art. 13(b); see also

Lozano, 572 U.S. at 5. Even where the court finds such a 

grave risk, however, the district court still has discretion to 
10 IN RE ICJ

order the child’s return. See Radu v. Shon, —F.4th —, 2021 

WL 3883013, at *3 (9th Cir. Aug. 31, 2021).

Where the Convention’s return remedy is appropriate, 

“the Convention instructs contracting states to ‘use the most 

expeditious procedures available’ to return the child to her 

habitual residence.” Monasky, 140 S. Ct. at 723–24 (quoting 

H.C., Art. 2. and citing H.C., Art. 11 (prescribing six weeks 

as normal time for return-order decisions)).

The United States ratified the Hague Convention in 

1988, and Congress implemented the Convention through 

the International Child Abduction Remedies Act 

(“ICARA”), 22 U.S.C. §§ 9001–11.7 See Lozano, 572 U.S. 

at 6.

In reviewing a district court’s decision in a Hague 

Convention case, “we review the district court’s factual 

determinations for clear error, and the district court’s 

application of the Convention to those facts de novo.” 

Flores Castro v. Hernandez Renteria, 971 F.3d 882, 886 (9th 

Cir. 2020). We review for an abuse of discretion the district 

court’s determination of whether to return a child to her 

country of habitual residence in the face of a grave risk. See

Radu, 2021 WL 3883013, at *3.

III. DISCUSSION

In this case, the district court denied Jones’s Hague 

Convention petition to return ICJ to France, ruling 

alternatively: 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 

7 Congress originally codified ICARA at 42 U.S.C. §§ 11601–10, 

see Lozano, 572 U.S. at 6, but later transferred it to Title 22.
IN RE ICJ 11

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 district court 

further relied on the pandemic to support the court’s decision 

not to return ICJ to France for a custody determination.

We address the three legal errors in the district court’s 

rulings that require us to vacate the district court’s decision 

and remand: 1) Assuming Jones cut off financial support for 

ICJ, the district court erred as a matter of law in determining 

that was sufficient to establish that Jones clearly and 

unequivocally abandoned the child, the showing required for 

deeming a parent not to be exercising custody rights. 2) The 

district court further erred in declining to return ICJ to 

France based on a “grave risk” defense, without first 

considering whether there are 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. 3) The district court also erred in 

relying in part on the pandemic to deny Jones’s petition 

because the record did not include any evidence addressing 

what specific pandemic related risk returning ICJ to France 

would present.

A. Fairfield wrongfully removed ICJ from France.

The Hague Convention requires that a “child wrongfully

removed from her country of ‘habitual residence’ ordinarily 

must be returned to that country.” Monasky, 140 S. Ct. 

at 722–23 (emphasis added); see H.C., Arts. 3, 12.

The removal or retention of a child is to be 

considered wrongful where—
12 IN RE ICJ

a) it is in breach of rights of custody 

attributed to a person . . . , either jointly or 

alone, under the law of the State in which the 

child was habitually resident immediately 

before the removal or retention; and

b) at the time of the removal . . . those rights 

were actually exercised, either jointly or 

alone, or would have been so exercised but 

for the removal . . . .

H.C., Art. 3 (emphasis added).

The district court correctly determined that ICJ’s country 

of habitual residence was France, French law provided both 

Jones and Fairfield with the right to custody of ICJ, and 

Fairfield’s leaving France with ICJ breached Jones’s custody 

rights.8

 Nevertheless, the district court ruled that Fairfield’s 

removing ICJ from France was not “wrongful” because at 

the time of removal Jones was not actually exercising his 

custody rights, in light of his failure to support ICJ 

financially. That was error.

The Hague Convention does not explain how one 

“exercise[s]” custodial rights. See Friedrich v. Friedrich, 

78 F.3d 1060, 1065 (6th Cir. 1996). But federal circuit 

courts in the United States have consistently required a 

showing that a parent has clearly and unequivocally 

abandoned a child before ruling that that parent is not

actually exercising his custody rights. See id. at 1066; see

8 In her answering brief, Fairfield states in a single phrase that ICJ’s 

habitual residence is, instead, Spokane, Washington, without any further 

argument. That perfunctory assertion is insufficient to raise an adequate 

challenge to the district court’s determination that France is ICJ’s 

country of habitual residence.
IN RE ICJ 13

Asvesta v. Petroutsas, 580 F.3d 1000, 1017–18 (9th Cir. 

2009) (endorsing this standard); see also Lopez v. Bamaca, 

455 F. Supp. 3d 76, 82 & n.8 (D. Del. 2020) (noting 

“virtually every circuit” follows Friedrich’s abandonment 

test, citing cases). The parties here agree that this is the 

relevant legal standard.

In applying this standard, courts “liberally find ‘exercise’ 

whenever a parent with de jure custody rights keeps, or seeks 

to keep, any sort of regular contact with his or her child.” 

Friedrich, 78 F.3d at 1065 (6th Cir.).

Once [a court] determines that the parent 

exercised custody rights in any manner, the 

court should stop—completely avoiding the 

question whether the parent exercised the 

custody rights well or badly. These matters 

go to the merits of the custody dispute and 

are, therefore, beyond the subject matter 

jurisdiction of the federal courts.

Id. at 1066 (citing 42 U.S.C. § 11601(b)(4), now found at 

22 U.S.C. § 9001(b)(4) (“The Convention and this chapter 

empower courts in the United States to determine only rights 

under the Convention and not the merits of any underlying 

child custody claims.”)).

Jones, as the petitioning parent, had the initial burden of 

proving by a preponderance of the evidence that he was 

actually exercising his custody rights to ICJ at the time 

Fairfield removed the child from France. See 22 U.S.C. 

§ 9003(e)(1) (stating that petitioner had burden of proving 

wrongful removal); H.C., Art. 3 (listing as one element of 

wrongful removal proof that petitioner was exercising his 

custody rights). Jones’s burden, however, was “minimal,” 

Asvesta, 580 F.3d at 1018, and he clearly met it here.
14 IN RE ICJ

The record indicates that, after Jones and Fairfield 

separated in May 2020, Jones saw ICJ often, both before and 

after Fairfield took ICJ to visit Fairfield’s family in the 

United States. Jones kept ICJ overnight on several 

occasions, with Fairfield’s consent. Jones did not see ICJ 

after July 30, but it is undisputed that was because Fairfield 

took ICJ to northern France and did not reveal their 

whereabouts to Jones. Jones presented evidence, including 

text messages and emails, indicating that he frequently asked 

Fairfield to let him see ICJ, to no avail. When Fairfield 

revealed her location, in mid-October 2020, Jones attorney 

directed him not to try to see the child, while the divorce 

attorneys negotiated visitation. Cf. Stirzaker v. Beltran, 

No. CV09-667-N-EJL, 2010 WL 1418388, at *5–6 (D. 

Idaho April 6, 2010) (unreported) (holding father was 

actually exercising his custody rights, even though he 

acquiesced to his attorney’s advice to move out of the family 

home and not have contact with the family after the mother 

filed criminal charges against him, where before that the 

father had been involved in the child’s care). It was while 

these negotiations were ongoing, and just a few weeks before 

the first hearing in the French divorce proceeding was to 

occur, that Fairfield left France with ICJ. Jones’s actions 

seeking to establish visitation belie any claim that he clearly 

and unequivocally abandoned ICJ. See Walker v. Walker, 

701 F.3d 1110, 1121–22 (7th Cir. 2012) (noting father’s 

letter requesting specific visitation times “can hardly be 

characterized as indifferent to custody issues”).

Because Jones made the required minimal showing that 

he was exercising his custody rights, the burden shifted to 

Fairfield, as the party opposing returning ICJ to France, to 

prove by a preponderance of the evidence that Jones was not 

actually exercising his custodial rights. See H.C., Art. 13(a) 

(recognizing this defense to return); 22 U.S.C. 
IN RE ICJ 15

§ 9003(e)(2)(B) (indicating respondent has to prove an 

Article 13(a) defense by a preponderance of the evidence). 

Even accepting Fairfield’s disputed assertion that Jones cut 

off financial support to Fairfield and ICJ for two and onehalf months, Fairfield has not shown that Jones clearly and 

unequivocally abandoned ICJ.

Other courts have reached the same conclusion under 

circumstances similar to these, where a parent with custody 

rights tries to maintain contact with a child after the other 

parent leaves, even though that parent stops financial support 

for short periods of time. In Walker, for example, the 

Seventh Circuit addressed a situation where a U.S. citizen 

and an Australian citizen moved to Australia, had a family, 

and lived there for 12 years. 701 F.3d at 1114. The mother 

took the children to the United States for an extended visit, 

then decided they would remain in America, where she filed 

for divorce. Id. at 1114–15. The Seventh Circuit held that 

the father—who remained in Australia and briefly stopped 

providing financial support just before the mother’s 

wrongful retention of the children in the United States—was 

actually exercising his custody rights, where he contacted 

the children weekly via Skype and his Australian divorce 

attorney sent a letter proposing specific visitation dates. Id.

at 1115, 1121–22. In light of that regular contact, and efforts 

to obtain specific visitation rights, the Seventh Circuit 

declined to find clear and unequivocal abandonment based 

solely on a brief lack of financial support. Id. at 1121–22. 

In reaching that conclusion, the Seventh Circuit noted that

[n]either the district court nor [the mother] 

identifies any case in which a court has found 

abandonment based on a lack of financial 

support, let alone a case that finds that a 

parent may forfeit his rights under the 
16 IN RE ICJ

Convention by failing to send money to the 

abducting spouse even as he works actively 

to have the children returned.

Id. at 1122. The Seventh Circuit further noted

that whether one parent is required to pay 

support to the other is an issue on the merits 

of a divorce proceeding, and we are thus wary 

of allowing the presence or absence of 

financial support to factor too prominently in 

the analysis of the exercise of custody rights 

at the time of the removal or retention.

Id.; cf. Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014, 1023–25 

(N.D. Ill. 2011) (holding father was actually exercising his 

custody rights where he visited the child and “infrequently” 

“provided some monetary support”); In re Polson ̧ 

578 F. Supp. 1064, 1067, 1072 (S.D. Ill. 2008) (holding 

father was actually exercising his custody rights where he 

maintained contact with the child and continued to support 

the mother and child until the mother filed for divorce).

Similarly, in Baxter v. Baxter, the Third Circuit held that 

a father was actually exercising his custody rights, even 

though he withheld financial support for “a few weeks” 

while mother and child visited the United States from 

Australia and before the mother informed the father she 

intended to stay in the United States. 423 F.3d 363, 369–70 

(3d Cir. 2005). In that case, as in our case, the family had 

lived together as a family in Australia before mother and 

child visited America and while they were together the 

family continued to support the family financially. See id.

at 370. See also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F. 3d 

259, 277 (3d Cir. 2007) (noting “very little” is required to 
IN RE ICJ 17

show parent is actually exercising custody (quoting In re 

Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006))).

The test Fairfield had to meet to show that Jones had 

clearly and unequivocally abandoned ICJ is “stringent.” 

Baxter, 423 F.3d at 370 (3d Cir.) (citing Friedrich, 78 F.3d 

at 1065–66 (6th Cir.)). Here, then, even assuming that Jones 

cut off Fairfield and ICJ financially for two and one-half 

months after Fairfield took ICJ to northern France, that is 

insufficient by itself to establish that Jones clearly and 

unequivocally abandoned ICJ, in light of Jones’s continuous 

efforts to see the child. Because that is the only reason 

advanced by the district court to support its abandonment 

ruling, the district court erred in concluding Jones was not 

exercising his custody rights at the end of October 2020, 

when Fairfield took ICJ to the United States. Contrary to the 

district court’s decision, then, Fairfield wrongfully removed 

ICJ from France.

Ordinarily, the Hague Convention requires the return of 

a child wrongfully removed from her country of habitual 

residence, subject only to a few narrow exceptions. See

22 U.S.C. § 9001(a)(4). Here, in its alternative ruling, the 

district court held that Fairfield had established that one of 

those narrow exceptions—when return presents “a grave 

risk” of placing the child “in an intolerable situation,” H.C., 

Art. 13(b)—precludes returning ICJ to France. As we 

explain next, that ruling was inadequate because the district 

court never considered whether there are “alternative 

remedies” available that could permit returning ICJ to 

France while at the same time protecting her from harm. 

Radu, 2021 WL 3883013, at *3–4 & *3 n.2.
18 IN RE ICJ

B. The District Court failed to consider whether French 

courts could mitigate any grave risk to ICJ if she 

returns to France.

Fairfield had the burden of proving a “grave risk” 

defense under Article 13(b) by clear and convincing 

evidence. See 22 U.S.C. § 9003(e)(2). The district court 

determined that Fairfield had met her burden, ruling:

Here, the Court finds that if the child were 

returned to France there is a grave risk that 

their return would place the child in an 

intolerable situation. Although Jones 

attempts to persuade the Court that his 

domestic life is stable, it is undisputed that 

Jones attempted suicide to coerce Fairfield 

into staying, threatened to blackmail her, and 

cut off financial support. Also, the Court 

cannot ignore the allegations of Jones 

viewing child pornography in the presence of 

the child. While most of these actions were 

directed at Fairfield, the Court is concerned 

they reflect instability on the part of Jones 

that would place the child in an intolerable 

situation.

(E.R. 15–16 (footnote omitted).)

Although Jones disputes the district court’s “grave risk” 

determination, “[w]e need not reach that issue . . . because 

. . . , even if such risk existed, the district court erred in 

failing to consider alternative remedies by means of which 

[ICJ] could be transferred back to [France] without” placing 

her in an intolerable situation. Gaudin v. Remis, 415 F.3d 

1028, 1035 (9th Cir. 2005). This circuit requires that, 

“before denying the return of a child because of a grave risk 
IN RE ICJ 19

of harm, a court must consider alternative remedies that 

would ‘allow both the return of the [child] to [her] home 

country and [her] protection from harm.’” Id. (quoting 

Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999)). 

Further, “because the Hague Convention provides only a 

provisional, short-term remedy in order to permit long-term 

custody proceedings to take place in the home jurisdiction, 

the grave-risk inquiry should be concerned only with the 

degree of harm that could occur in the immediate future.” Id.

at 1037 (emphasis added). The question, then, “is not 

whether the child would face a risk of grave harm should she 

permanently reside in [France], but rather whether she would 

face such a risk while courts in [France] make a custody 

determination.” Zaragoza Gutierrez v. Juarez, No. CV-17-

02158-PHX-GMS, 2017 WL 3215659, at *5 (D. Ariz. July 

28, 2017) (citing Mozes v. Mozes, 239 F.3d 1067, 1086 n.58 

(9th Cir. 2001), abrogated on other grounds by Monasky, 

140 S. Ct. at 723, 725–26, (addressing standard for 

determining child’s country of “habitual residence”), and 

Friedrich, 78 F.3d at 1069 (6th Cir.)).

We, therefore, remand so the district court can consider 

the possibility that alternative remedies exist and could 

permit returning ICJ to France for a custody determination. 

On remand the district court might consider, for example, 

whether ICJ can be safely returned to France in the custody 

of her mother, or in a third party’s custody. See Gaudin, 

415 F.3d at 1037; see also Blondin, 189 F.3d at 249 (2d Cir.) 

(suggesting similar possibilities after noting that granting 

father’s Hague Convention petition “would not . . .

invariably entail turning the children over to his custody”). 

Jones suggested similar possibilities to the district court. On 

remand, “[p]erhaps the court would deem one of these 

undertakings appropriate, or another, or perhaps it would 

conclude that it would be impossible to return [ICJ] to 
20 IN RE ICJ

[France] without placing [her] at risk. We do not in any way 

prejudge the district court’s decision.”9 Gaudin, 415 F.3d 

at 1037.

This court has recently addressed in detail the relevant 

considerations that may affect that determination and what 

information might be needed, and we identified resources 

available to aid the district court, including the United States 

State Department’s Office of Children’s Issues. See Radu, 

2021 WL 3883013, at *4–6. Importantly, part of the analysis 

on remand should include consideration of whether any 

suggested conditions for ameliorating a grave risk to ICJ 

would be enforceable or present “sufficient guarantees of 

performance” in France. Walsh v. Walsh, 221 F.3d 204, 219 

(1st Cir. 2000) (“A potential grave risk of harm can, at times, 

be mitigated sufficiently by the acceptance of undertakings

and sufficient guarantees of performance of those 

undertakings.”); see Radu, 2021 WL 3883013, at *4; see 

also, e.g., Saada v. Golan, 930 F.3d 533, 539–40 (2d Cir. 

2019) (discussing potential difficulties in enforcing 

undertakings meant to ameliorate a grave risk to the child, 

citing cases), petition for cert. filed, (U.S. Jan. 21, 2021) 

(No. 20-1034). The district court “need[s] to determine 

whether and how the alternative remedy is likely to be 

performed.” Radu, 2021 WL 3883013, at *4.

“We are bound, therefore, to remand for the district court 

to determine whether any such remedy is possible. That 

inquiry . . . is inseparably bound up with the question [of] 

whether a grave risk . . . exists in the first place.” Gaudin, 

9 See generally Baran v. Beaty, 526 F.3d 1340, 1349–51 (11th Cir. 

2008) (discussing concept of “undertakings,” or alternative remedies, as 

a possible means of protecting a child from a “grave risk” when ordering 

his returned to his country of habitual residence for a custody 

determination).
IN RE ICJ 21

415 F.3d at 1036. Those determinations should be made “in 

light of circumstances as they exist in the present.” Id. 

During oral argument, the parties indicated that French 

courts have now made some sort of custody decision in the 

parties’ French divorce proceedings. On remand, that 

information may be helpful to inform the district court’s 

determination as to whether French courts would be able to 

protect ICJ upon her return to France for a custody 

determination. See also Blondin, 189 F.3d at 249 (2d Cir.) 

(remanding so district court could further consider “the 

range of remedies that might allow both the return of the 

children to their home country and their protection from

harm, pending a custody award in due course by a French 

court with proper jurisdiction”). Any “alternative remedy 

must significantly reduce, if not eliminate, the grave risk of 

harm to” ICJ. Radu, 2021 WL 3883013, at *4.

C. The district court also erred in relying on the 

COVID-19 pandemic.

In refusing to return ICJ to France, the district court 

noted that “[t]he COVID-19 pandemic provides an 

additional layer of concern for the child to travel back to 

France.” (E.R. 16.) It appears from this brief statement that 

the district court implicitly decided that sending ICJ back to 

France during the pandemic presented a “grave risk” of 

“expos[ing] the child to physical . . . harm,” H.C., 13(b). See

Chambers v. Russell, No. 1:20CV498, 2020 WL 5044036, 

at *14 (M.D.N.C. Aug. 26, 2020) (discussing pandemic in 

context of “grave risk” defense). That was error because 

there is simply no evidence in the record addressing whether 

COVID-19 would present a “grave risk” to ICJ’s health if 

she returned to France. See Filho v. de Albuquerque, 

No. 1:20-CV-01421-RBJ, 2020 WL 9455201, at *9 (D. 

Colo. Aug. 21, 2020) (rejecting “grave risk of harm” defense 
22 IN RE ICJ

based in part on argument that it was safer in Colorado than 

in Brazil during the pandemic, where there was no evidence 

to support that assertion and “[t]he Court has no basis to 

speculate that reasonable and necessary precautions will not 

be taken to protect [the child] from the virus upon her return 

to Brazil”); see also Chambers, 2020 WL 5044036, at *14

(holding “COVID-19 does not satisfy the Grave-Risk

Defense”). See generally Nunez v. Ramirez, No. CV07-

01205-PHX-EHC, 2008 WL 898658, at *5 (D. Ariz. Mar. 

28, 2008) (noting “[p]roof of grave risk of harm requires 

‘specific evidence of potential harm’ to children” (quoting 

Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995)). On remand, 

the district court can consider any evidence presented on any 

specific current risk presented to ICJ by the ongoing 

pandemic. See Gaudin, 415 F.3d at 1036 (directing district 

court, on remand, to consider existence of any possible 

remedies to any grave risk presented to the child “in light of 

circumstances as they exist in the present”); see also id. at 

1037.

IV. CONCLUSION

For the foregoing reasons, we VACATE the district 

court’s decision to deny Jones’s petition seeking ICJ’s return 

to France and REMAND for further proceedings consistent 

with this opinion. “Consistent with the goals of the 

Convention, this litigation should conclude as quickly as 

possible.” Radu, 2021 WL 3883013, at *7.