Case Update (2021): in re matter of ICJ; not actually exercising rights of custody

On January 28, 2021, the U.S. District Court for the Eastern District of Washington denied a Father's request to return his child to France using the Hague Abduction Convention in the case of In Re Matter of ICJ (Jones v. Fairfield).  The Father (Mr. Jones) has already appealed.

While the trial judge concluded that there would be a grave risk of harm to return the minor child to France, the interesting part of this opinion is that the Court actually found that Mr. Jones was not actually exercising his rights of custody at the time of the removal, and therefore the removal was not "wrongful" under the treaty.  This prong of the Petitioner's case-in-chief is often given lip-service in Hague abduction litigation, often just being assumed.  The case of Friedrich v. Friedrich had addressed this question in 1996 and said, "The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to 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."

In this case, the court concluded that Mr. Jones was not exercising his custody rights because Ms. "Fairfield and the child were living in a homeless shelter because [she] did not have the funds to pay for other lodging."  Mr. Jones submitted a French bank account statement, arguing that Ms. Fairfield had access to funds, but the statement was not translated to English and the court had no way to verify that the highlighted debits actually went to Ms. Fairfield.  The court opined that the mere undisputed fact that Ms. Fairfield was living in a women's homeless shelter "alone suggests that Jones intentionally cut off all support of Fairfield and his child, knowing that his child would suffer."  

One last comment about this opinion:  it is unclear what role COVID played in the overall decision, but the court made a final comment that seemed unrelated to the rest of the analysis.  That is, "the COVID-19 pandemic provides an additional layer of concern for the child to travel to [sic] back to France. Notably, the French courts have permitted Fairfield to appear by Zoom, rather than require her presence at the February 4, 2021 [French custody] hearing."