The Bitter Custody Battle of Kelly Rutherford
I have been following the custody battle of actress Kelly Rutherford. My understanding of that matter is that her and ex-her husband, Daniel Giersch, a German national, split up a few years ago. Giersch returned to Europe because his working visa in the US expired. Their two children, 8 year old Hermes, and 6 year old Helena, have been living with the father in Monaco per a 2012 court order.
This past summer, a Judge in Monaco ordered that the children may visit their mother, Kelly Rutherford, in the United States during the summer months. The order also contained a provision that Kelly was to return the children to their father’s custody at the end of the summer. Ms. Rutherford refused to return her children to Monaco at the end of the summer vacation.
I had a case exactly like this, last year, at this same time. The case was directly on point. The only difference was that in my case, the parties lived in different states, rather than different countries. I represented the out of state parent, who was the mother. Her child was visiting his father in California during summer vacation. The father refused to return their son to his mother at the end of the summer, per the clear terms of the court order.
I went into court ex parte to request that the father be ordered to return the child. The father was so ordered. The Judge was not happy that the father willfully violated a court order. The fact that he did that set the tone for the remainder of the court case. The father had asked for a change in custody, among other things. The father lost on every single issue thereafter.
It is never wise to violate a court order. Kelly Rutherford, stated publicly that the US did not have jurisdiction to order her to return her children to Monaco. Her having done that was a clear sign to Judges in both the US and Monaco, that she has no problem disobeying a court order. This will affect her credibility in the future.
She would have been wise to have returned her children to Monaco per the terms of the court order, and have simultaneously filed a motion for change of custody. She could have also filed a motion for declaratory relief, and have requested clarification of the 2012 court order which gave the father temporary custody in Monaco.
As things are now, she is unlikely to ever win an argument for change of custody. Her actions will also affect her visitation rights in the future.
Her lawyer argued that the children had a fundamental right to be in the US since they are US citizens. Her lawyer was grasping at straws. That argument would have been effective if the parties were in the midst of arguing a custody battle in the US. But here, the court orders regarding custody were already in place. Furthermore, there are treaties in effect which govern international custody disputes. Thus, it was erroneous for her lawyer to have argued that the court lacked jurisdiction to order return of the children to Monaco.
The moral of the story is to never, ever, violate a court order.