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The End of the Rutherford Custody Battle

It seems like the end has been reached in Kelly Rutherford’s custody battle. Last week a judge ruled that the Gossip Girl actress would not receive custody of the two children she shares with ex-husband Daniel Giersch. She has also been further barred from bringing them to the United States.

The End of the Rutherford Custody Battle

The Rutherford-Giersch battle has long been a subject of tabloid fodder.

In December 2008, when Rutherford was only three months pregnant with Helena, she initiated the divorce proceedings, citing “irreconcilable differences.” As she has said in an interview with Vanity Fair, “I didn’t want any money from Daniel. I wanted us both to be great parents. I wasn’t asking for full custody.”

Instead the actress sought 50-50 legal custody, with her as the primary residential parent. But Giersch did not agree with that decision. Instead he sued for Giersch went further. He sued for sole legal and physical custody of Hermes and of the not-yet-born infant daughter, Helena.


In 2012, a judge decided Kelly Rutherford and Daniel Giersch share joint custody of their two children. The kids would live in Monaco and France with their father because his visa had been revoked. But now, three years later, it seems the custody battle is over, at least for now.

As a result of the latest hearing, full custody of Hermes, 9, and Helena, 6, has been granted to Rutherford’s ex-husband Daniel Giersch. And according to People magazine, Rutherford will only be able to visit her children if she goes to Monaco or France.

When asked how she feels about the judge’s decision, she answered, “I think like any parent would feel.”

Expected Ruling

But according to experts, the latest ruling was to be expected.

Last August, a Los Angeles court said it no longer had jurisdiction over the custody dispute. Then, New York courts declined jurisdiction.

In response and furstration Rutherford, who founded the Children’s Justice Campaign to help families with similar across-nation legal issues, refused to send her children back to Giersch after spending the summer in New York with their mother. She contended that, since California had dropped jurisdiction and New York had declined it, no American court would be able to force her to send her children back to her husband in Monaco.

“I have decided that I cannot lawfully send my children away from the United States to live in a foreign country,” she wrote in a statement. Manhattan Supreme Court Judge Ellen Frances Gesmer did not agree with the actress, and instead ordered her to return the children to their father. Judge Gesmer also said she did not “look kindly upon” Rutherford’s failure to comply with the previous court orders to return the children at the end of their summer vacation with her.

And according to legal experts, Rutherford’s failure to comply most likely lost this custody battle for her. Michael Stutman, head of the family family group at Mishcon de Reya New York believe’s “Kelly’s failure to deliver the children… likely bought them a one-way ticket to Monaco. Given Kelly’s initial failure to send the children back, showing up without them was probably the nail in her coffin.”

He went on to say that, “The actions of Ms. Rutherford leading up to this ruling make the decision to award custody to Mr. Giersch the furthest thing from a surprise.”

He added, “Any responsible lawyer would advise her to end this crusade for custody.”

Fighting for Custody

As Kelly Rutherford knows, the battle for custody of your children can be heartbreaking. If you are facing this kind of battle, you’ll want to know what types of custody are available, and what you will need to do to retain custody of your children.

There are different forms of child custody: legal custody, physical custody, sole custody, and joint custody.

Physical Custody

Physical custody means a parent has gained the legal right (typically through a court ruling) to have a child live with him or her. Usually if a parent has physical custody they also have sole custody of the child, which means the other parent has visitation rights.


Sole Custody

There are two forms of sole custody a parent can have: sole legal custody or sole physical custody. Courts seem to be moving away from awarding sole custody to one parent as more information is coming out about the importance of having both parents in a child’s life. In cases where a parent has been deemed unfit due to a history of neglect or abuse, a known dependency on drugs or alcohol, or a new parented that has been deemed unfit, a court will usually award sole physical custody to one parent.  It’s advised that unless a parent has demonstrated the above issues, that you do not seek sole custody, due to the importance of having both parents in a child’s life.

While the trend is to award joint custody, in cases where courts do award sole physical custody the parents still usually share joint legal custody (which means both parents are able to make legal decisions regarding the child), unless a parents has been deemed unfit to make those legal decisions.

Legal Custody

Legal custody allows a parent to make decisions regarding various aspects of a child’s life, including: education, religion, and medical care or legal issues.

Joint Custody

Joint custody is abel to be awarded to the parents if they are divorced, separated, no longer living together, or if they never lived together but still shared a child. The awarding of joint custody to both parents means each parent is able to make decisions regarding the child. Joint custody also comes in various forms, including: joint legal custody, joint physical custody, or joint legal and physical custody. Usually if a couple shares joint physical custody they also share joint legal custody. But if a couple shares joint legal custody they do not always also share joint physical custody.

Learning How to Co-Parent

One of the hardest things that Kelly Rutherford and Daniel Giersch will need to eventually develop is a co-parenting relationship. This will be especially hard since they live on separate ends of the world, and even more difficult because of their already strained relationship.

“The biggest obstacles to successful co-parenting are emotions,” says Alisa Peskin-Shepherd, principal of Transitions Legal, a family law practice that specializes in mediative divorce. “Emotional obstacles are usually anger, resentment and jealousy. Often parents have a hard time separating those feelings toward their former spouse from their attempt to focus on their children.”

The idea of focusing on your children might seem obvious, but that can be really difficult when you receive that text from your ex that makes you want to throw your phone directly into their face. There are some tips that can help though! Here are some tips from parents who have actually found the magic combination to a successful (meaning they don’t completely resent each other) co-parenting situation.

Do YOU Need a  ‘Timeout’?

If you are not able to give yourself a timeout, and find that you are still stewing about conversing with your ex, consult a “co-parenting coordinator,” attorney or counselor – with or without your ex-spouse. This objective third party can be a great sounding board for ironing out your co-parenting relationship.

“Our expectations that two people who didn’t get along when they are married will suddenly be able to co-parent without some help is not reasonable,” Peskin-Shepherd says.

According to Alison Willet, a Birmingham resident and psychologist who has worked with high-conflict divorce, it is crucial for ex-spouses to heal fully from the pain that stems from their divorce if they plan to find a way to co-parent effectively.”

Play to Your Ex’s Strengths (This Might Be Very Difficult)

By now you know what your ex is good and and what they’re not so good at. So play fair when it comes to your kids and your ex’s abilities.

“You probably know your ex-spouse better than anyone else,” says Chris Tucker, father of Finn, 9, and Simon, 7, and step-dad to Lucas, 6. “Play to those strengths – not in a manipulative way, but in a spirit of making the best use of one another’s talents.”

Cooperation Is Key

This can be the hardest part of a co-parenting relationship – cooperating.

According to mother Shaindle Braunstein-Cohen, “Effective co-parenting does not require friendship, but it does require cooperation.”

Get it in Writing

Peskin-Shepherd advises parents to put everything in writing. That means that all plans and agreements should be kindly communicated to the other parent. This should be part of your working situation. If it’s in writing, it is harder for one person to argue about the agreed arrangement. This should be done for even the smallest things if you know that there is potential for arguments later down the road. This is especially necessary for vacation time and scheduling, agreements regarding financial decisions, and paying for child’s needs. A majority of these things will be part of your child custody agreement, but anything that comes up out side of that should also be agreed to in writing.

Set High Intentions

Keely Henry dealt with an ugly divorce. She did not want it to affect her son, Sullivan, 8. “I knew I could not let this ugly experience lead our lives,” she says. “I was going to have to communicate with my ex over the course of our son’s life. The only thing to do was set the ideal on a higher notion, above emotional distress.”

Because of that, Henry and her ex decided to celebrate holidays and birthdays with Sully together, which means including Henry’s new life partner and her ex’s partner, the woman that her husband left her for. “We all collaborate on my son’s parenting, with his dad and I as the final sayers,” she says. “It really is simple. Set the goal for the higher, not the lower.”

Let Go of Wanting Control

Even thirteen years after their divorce, Jodi Rubin and her ex-husband disagree about the same things they did not agree about when they were married. But they’ve been able to reach a place of mutual respect that allows them to co-parent their three children, Jordan, 19, Paige, 15, and Ethan, 13.

“It’s not about you,” says Rubin. “Instead of worrying about each other, worry about the kids. It’s a parent’s job to turn their children into productive and emotionally healthy adults, and you can’t do that if you’re focused on each other.”

Silence your Support System

Your friends and family will want to defend you, but there’s nothing helpful about your mother sending your ex a nasty email. The support system should remain impartial, and if they’re not, you need to intervene.

Keep Your Ego in Check

It goes without saying that you’re going to doubt your parenting ability and fear that your children will want to be with the other parent. But you have to resist the urge.

“It’s easy to see your ex-spouse as a threat,” says Tucker. “Remind yourself that your ex is also your children’s parent and would also step in front of a bus for them. Trust that they also have your children’s best interests at heart.”

Working with a Child Custody Attorney

If you are facing a child custody dispute, you should contact a child custody attorney. Because there are a lot of rules surrounding child custody and there are a lot of aspects that factor into child custody decisions, working with a child custody attorney can help you through the process.

Divorce Law LA, Esq.

Divorce Law LA

33 S. Catalina Ave. Ste. 202

Pasadena, Ca. 91106

(626) 478-3550