Kelly Rutherford is an American actress who began her career in daytime soap operas, later moving to primetime network television in Melrose Place and Gossip Girls. However, she is much more famous today for her custody battle with ex-husband, Daniel Giersch.
Her court case has enraged media pundits who are slamming the family courts in California and New York, expressing outrage that Kelly Rutherford’s two American-born children were ordered to live in Europe with their father, an alleged breach of their constitutional rights. But if the television “experts” actually knew anything about custody law they would understand that it’s not the courts who are to blame, it’s Ms. Rutherford’s wrongheaded strategy.
A little background… Rutherford had a six-month first marriage and then married German businessman Daniel Giersch in August 2006. Their first child, Hermes Gustaf Daniel Giersch, was born in October 2006. Rutherford was two-months pregnant with their second child when she filed for divorce from Giersch on December 30, 2008
A custody battle immediately ensued with Mr. Giersch alleging his wife refused to tell him the expected birthdate of their daughter, Helena. After her birth she restricted his parenting time and also failed to register him as the father on her birth certificate. Rutherford either had bad legal advice, or more likely, ignored the advice she received. A sure way to sabotage a custody claim is to deny access and purposely decline to name the child’s father on the birth certificate.
But after seven months of legal wrangling in the California courts the couple agreed they would both live in New York City so Ms. Rutherford could continue with her work on Gossip Girls, an agreement that would expire in April 2010.
In 2012 the matter of final custody was adjudicated, resulting in an order that the two children live with their father in either Monaco or France. During the court proceedings, evidence was presented that showed that Ms. Rutherford contacted United States immigration resulting in Mr. Giersch’s expulsion from the United States. A wrongheaded strategy that clearly backfired on Ms. Rutherford. If her former husband had been permitted to remain in the United States it is unlikely she would have spent a million or more dollars fighting over custody and also avoided going personally bankrupt.
Trial evidence included reports that Ms. Rutherford’s work commitments, including twenty-hour work days, led to Mr. Giersch playing “Mr. Mom” in his wife’s absence. The judge also criticized Ms. Rutherford for misleading the court with respect to her work schedule and was unimpressed with her unwillingness to facilitate access. All good reasons to prefer Mr. Giersch as primary resident parent.
Ms. Rutherford went back to the California courts to change the custody order but the court ruled they no longer had jurisdiction. Neither of the parties lived there; Ms. Rutherford lived in New York while her ex-husband lived in Europe and neither of the children resided in California.
Happily for Ms. Rutherford, the children were with her for the summer of 2015.
Her lawyer then brought an application to the New York courts seeking an order that the children remain with her in New York. Unfortunately, the court declined jurisdiction on the basis the children were now habitually resident in Monaco, and only the Monaco court could make orders regarding the children.
In her latest strategic misstep, Ms. Rutherford refused to return the children to their father, causing the New York court to step in and order her and the children to appear in court where Mr. Giersch’s mother took custody of the children and returned them to her son.
It’s a familiar story: parents really have only one opportunity to obtain or retain custody or primary residence of their children. If they make mistakes, like Ms. Rutherford did, the chance of a change in residence is extremely remote. Her next best opportunity is when the children are able to speak for themselves, usually around the age of 13, but only if they want to live with their mother.
In the new world of shared parenting, mothers do not have a monopoly on child custody. That’s the past…this is the present…and the future.
Lawdiva aka Georgialee Lang