Kelly Rutherford in International Custody Dispute

Fans of “Gossip Girl” may know Kelly Rutherford for her acting skills, but today most people know her as part of an international legal drama involving her ex-husband, German businessman Daniel Giersch, and their two children.  

Rutherford originally filed for divorce in California in 2009, and it quickly turned bitter, with Giersch even challenging the paternity of the younger child.  The divorce did not become final until 2012, and the decision of the court to allow Giersch to raise the children in Monaco shocked many legal experts.  The children are U.S. citizens born in the United States and raised in the United States prior to the divorce; but the father had his visa revoked so he could not enter the country to see the children.  Rather than have mother arrange to travel with the children to see their father, the court decided to have mother travel to see the children.

Since then, Rutherford has been battling in California and also in Monaco to try and bring her children home.  She has filed for bankruptcy once already because of having to travel to Monaco over 70 times.

Recently, Rutherford had the ability to bring the children back to the United States – and now she refuses to return them to Monaco, the latest twist in this custody battle.

Under the Hague Treaty on International Child Abduction, courts of signatory countries must respect the jurisdiction of the court where the children habitually reside.  Even though California has exclusive jurisdiction under the UCCJEA (an American statute), Giersch now argues that the custody arrangement made Monaco the habitual residence of the children, which would give Monaco the right to decide custody moving forward.  But California never declined jurisdiction and Giersch agreed that California would remain the residence of the children, that the time in Monaco was only an accommodation to his visa status.

Another new twist:  it appears that the visa revocation may have been based on false information, which would serve as a fraudulent act to alter custody.

Now that Rutherford is in a bit of a gray area with regard to Hague status, she will continue to fight in both the United States and Monaco.  It remains a mystery what the courts will do in terms of ordering Rutherford to return the children.  Under the Hague treaty, if Giersch has custody and Monaco is the habitual residence of the children, Rutherford would be wrongfully retaining the children in the United States.  On the other hand, if the United States is the habitual residence of the children, she is not violating international law though she may be in contempt of the California court order.

This case highlights, unfortunately, the numerous problems that can arise when people of differing nationalities divorce and the children become caught in the middle.

If you have questions about international child custody issues, contact us – we can help.