There have been multiple articles written about the international child custody case regarding Gossip Girl’s Kelly Rutherford, who was married to German entrepreneur Daniel Giersch and who shares joint custody of their two kids Hermés and Helena.
To sum up an extremely lengthy child custody dispute, a California court ordered joint custody of the children to both parents, but primary physical custody to Giersch, who now lives in Monoco. Recently, both California and New York courts determined they no longer had jurisdiction over the case (as the children live in Monoco and pursuant to the Hague Convention on international child custody, to which the US is a signatory.) In the summer of 2015, after Kelly had the children for six weeks, she kept the children in New York past the court-ordered date they were to return to their father. After an emergency hearing, a New York judge ordered the children returned to their father immediately.
Although there have been many stories on this case, there is one thing that the American media has failed to do: actually read the court orders for the case when reporting on them. Kelly is a well-known actress who likely has a lot of friends who work in the media and for the gossip rags, so that’s probably why they are presenting the story with a Kelly-heavy spin.
It is a sad story, and no doubt Kelly cares for her children. However, here are a few things wrong that the media fails to mention about this case:
- Kelly keeps complaining that her children are American citizens and were “arrested” and “deported” to live in Monoco with their father. This could not be farther from the truth. This is a joint custody case, not an immigration case. In the 52 page California custody decision from 2012, the judge listed the myriad reasons why he ordered the children to live primarily with their father. The children were not arrested or deported; they are simply under the custody of their father.
- The media fails to mention how the court order details that Kelly’s former attorney made a false claim to the U.S. State Department to revoke the husband’s visa, while telling him he would stop making this call if the father gave up his rights to see the children. Basically, the reason he cannot return to the US is due to Kelly and her attorney attempting to get rid of him, and it backfired. Judges do not look kindly upon one parent who tries to alienate the children from the other parent.
- Kelly claimed that the NY judge who ordered the children to return to Monoco did not have jurisdiction (and the courts agreed). However, when she failed to return the children per the prior court order, NY (or any state where the children were located) could assume temporary, emergency jurisdiction to ensure the children were safe and to enforce existing court orders.
- Kelly claimed she could not kidnap the children, because they were in contact with her father during that time via phone and Skype. However, the kidnapping was in reference to the failure to return the children on the stated date of a court order, and this does qualify as “child abduction” under the Hague Convention. Whether the father knew of their physical location was irrelevant.
We wish the best for Kelly, David and the children. The sooner the parents can work together for the benefit of the children, the better off everyone will be.
Divorce Matters ”“ Denver Family Law Attorneys
