Kelly Rutherford’s Lawyer Threw the Dice and Lost

There are certain actions that are available to family law counsel that in the long run may hurt a client more than help them.

The first that comes to mind is the notion that revenge can be exacted by reporting one’s estranged spouse to the income tax authorities. In high conflict divorce each spouse is looking for a way to “get even”. However, anonymous reports to the IRS or Revenue Canada are wrong-headed and counsel who recommend such actions seem to forget that if their client’s spouse owes additional monies for income tax, usually their client is on the hook as well. Income tax debts that relate to income earned during the marriage are generally found to be “family debts” and both spouses must share the burden of payment.

Similarly, actress Kelly Rutherford’s lawyer “threw the dice” by contacting immigration authorities with allegations of bad conduct, urging them to deport her German-born husband, Daniel Giersch, who was in the United States on a visitor’s visa that had been extended from time to time.

The Decision in the Rutherford case paints a vivid picture of Kelly and Daniel in the California court hallway where Rutherford’s lawyer, Matthew Rich, in the presence of his client and opposing counsel, dialled the phone number of the U.S. State Department and urged them to arrest Daniel Giersch, advising them of his Visa status and the likelihood he would wrongfully remove the children, Hermes and Helena, from the United States.

Then Matthew Rich turned to Mr. Giersch and his lawyer suggesting that if they would sign a “stipulation” that Daniel would not have visitation with the children until further order of the court, that Rich would make the immigration problem go away. Giersch declined and shortly thereafter was deported.

The trial judge found that it was more than coincidence that Daniel’s deportation occurred after Mr. Rich’s imprudent call to the State Department.

Matthew Rich threw the dice, no doubt hoping that with Daniel out of the way, Ms. Rutherford would have custody of the children in the United States with little “interference” from the children’s father. What her lawyer didn’t count on was the possibility that Daniel Giersch would become primary resident parent outside of the United States, but that’s exactly what happened.

As the judge notes in his Decision, if Mr. Rich had not taken the steps he did, it is very likely Kelly and Daniel, who each were described as “excellent” parents, would have co-parented their children and avoided the emotional and physical expense of a custody and relocation trial.

While strategy is important in custody battles, all scenarios must be considered before action is taken that can backfire leaving disastrous results. Kelly Rutherford did not help herself by agreeing to her lawyer’s strategy, a finding the judge also made.

She couldn’t blame this on her lawyer.

Lawdiva aka Georgialee Lang