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 The kids would live in Monaco and France with their father because his visa had been revoked.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 far from over.
Son Hermes, 8, and daughter Helena, almost 6, have been ordered to return to the U.S. from Monaco for a court hearing on June 15. Rutherford, 46, has been granted sole legal and physical custody so that she can fly them back from Monaco for the hearing.
Too Soon to Tell
Prior to this new order, Rutherford had said that Giersch had denied allowing her to see the children during a visit last week. While this new order means her kids will come home to her, it’s too early to say if this means that they will be staying with her in California.
“It’s a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out,” says Nancy Chemtob, a family and divorce lawyer who is not involved in the case. Dan Abrams, an ABC legal analyst and founder of Mediaite has followed the case for years. Weighing in on the new developments he said, “Even though its temporary, it seems to demonstrate that the court is upset that its specific orders have either been ignored or dismissed by Daniel.”
Violations of Judgment
It seems that Giersch “is alleged to have committed numerous violations” of the 2012 judgment. Rutherford’s application for full custody are based on allegations that she was not allowed to spend time with the children when she attempted to visit or bring them back to America for visits. He also allegedly has not reapplied for a U.S. visa. It’s also rumored that a former lawyer from Rutherford’s team was responsible for the revocation after she reported Giersch’s allegedly illegal activities to the State Department. She is denying any involvement.
“She filed a motion saying there’s been a substantial change of circumstances, he’s not complying with the terms of the agreement, he’s making false accusations or obstacles as to why she shouldn’t see the children, so now the judge ruled, ‘Okay, fine, the children are awarded back because there has been a change in circumstances,’ ” said Chemtob, weighing in on the case. “The judge said, ‘You need to return the children to the court and be here on this date.’ Now, on that date, the other side is going to come I’m sure with evidence refuting everything she said.”
Hermes and Helena, both U.S. citizens, will need to be back in the U.S. by June 15 for the court hearing. The California court has asserted jurisdiction over the two children. Monaco also is a signatory to the Hague Convention. This agreement between more than 90 nations protects the interests of children and complies with other countries’ legal proceedings.
According to Chemtob, any attempts made by Giersch to keep the kids with him in Monaco “would be a violation of the court order and the breach of it is hugely severe. The punishment of him not coming back or not complying with the court order in itself could be a reason to transfer custody to her.”
In regards to the new court hearing, Abrams feels the current parenting arrangement could be altered completely.
“The court will hear both sides as they battle over whether it is in the best of the children to stay in France with Daniel or come back home to the United States to live with Kelly,” he says. “The court will also re-evaluate all aspects of visitation, etc.”
Chemtob feels: “There could be a modification, the children could be returned to the United States. A lot of times in relocation cases, they may go to school in the U.S. and spend their summers there. They could modify the access schedule to do what’s more appropriate for children of that age.” She goes on to say that while it’s unlikely a judge will make a final custody decision at this most recent hearing, the couple will most likely receive a briefing schedule, motions and eventually another trial.
“It’s an issue of fact and law. So the facts are: Did he violate, is he alienating, is she a good mother to take care of the kids on a regular basis in the U.S., are her parental rights going to be sorted if they continue to reside there?” Chemtob explains. “All those are issues of fact, and then the issue of law is something else.
“Usually, there will be a trial. That’s how you determine the issues of fact – who’s telling the truth.”
In cases like this it is not unheard of that the children be asked where and with whom they would like to live with. Both Chemtob and Abrams feel this is likely in this case.
“There could be forensic psychiatrists appointed, and I think one of the most telling things in this case is what the children are going to be saying, what they want to do, because of their ages going to be considered,” explains Chemtob. “They’re obviously much more verbal than they were last time this all happened.”
“The children may be interviewed, and a lawyer called a guardian ad litem might even be appointed again to represent their interests,” Abrams says. “The last representative for the children recommended that they stay with Kelly in the United States, but the California court in 2012 decided to reject that recommendation.”
Options for Giersch
Had Rutherford not been granted temporary full custody, there is a chance Giersch could have stopped Hermes and Helena from boarding the plane. According to Chemtob, the purpose of giving Rutherford temporary custody was to ensure the children were returned to the United States. Joint custody would have enabled Giersch to prevent the children from returning to California for the hearing.
As a result of the order, Giersch is now legally unable to stop the kids from traveling to Los Angeles. He or a representative must be present during the court hearing. While Chemtob feels Giersch could go to an appellate court in Monaco or the U.S. to ask for a stay, Abrams feels he would not be successful doing so.
“He can certainly appeal in California, but I think it unlikely any California court will change the order before the June 15 hearing,” Abrams says. “The interesting question is what happens if a Monaco court and Daniel refuse to adhere to the California court order. Then, you have American citizen children being kept in a foreign country in direct violation of a United States court’s order.
“I am confident that if that were to happen that State Department would get involved on Kelly’s behalf and that the California court would be even more likely to grant her permanent physical custody.”
Chemtob would “100 percent” recommend Giersch comply with the California court order. She would advise him to present his side of the story in front of the judge.
“I can’t imagine any lawyer would say otherwise, unless he had a real basis to appeal,” says Chemtob. “If he really had a real basis to appeal that they misapplied the law, then i would say, ‘Okay … let’s just comply. If you think you have a strong case, then you should win when you get here.’ “
When it comes to Giersch’s chances, Chemtob believes, “there’s a 50/50 chance, I don’t even think it’s 60/40, that when the kids come back, the court in California could hear evidence that would send the kids back to Monaco again.”
Preparations for Rutherford
Chemtob suggests that Rutherford and her team present how Rutherford will care for Hermes and Helena if she is granted permanent sole custody. This also means demonstrating how she will continue to encourage the relationship they have with their dad. According to Chemtob, the key is to paint a very clear picture that outlines what the children’s lives will be like if they return to America.
“Where are the kids going to go to school? Who’s going to watch them? Are you working, who’s going to watch the children while you’re working? What’s the support system, how are you supporting the children?” says Chemtob. “How are you going to let the children see their father, how are you going to foster the relationship between the children and their father – are you going to FaceTime, are you going to let them email, are you going to let them go for long weekends? How are you going to break up a winter schedule like Christmas break?”
She continues, “When my clients come in and they have a plan that really takes into consideration how the other parent’s going to be able to see the children, that’s what the judges respect.”
Additionally, Rutherford declared bankruptcy in 2013 as the result of mounting legal fees and travel costs to visit her children in Monaco. A fact that Chemtob feels should not be a disadvantage.
“Being able to support the children is one of the factors to consider, but someone shouldn’t be penalized because they have less money than the other spouse,” Chemtob says. “So it would be a factor that’s considered, but it wouldn’t be looked poorly on her that she had to file for bankruptcy.”
Abrams is confident Rutherford will prevail.
“Based on Daniel’s conduct, in particular his seeming disregard for the California court’s orders, I would expect the court to have the children come back to the United States, where Daniel can then finally apply for a U.S. visa again as he has long been required to do,” he says.
Move Away Court Orders
If you are facing a case such as this one, the first thing you need to identify is if you are able to move away and relocate your child. Most courts will not allow a parent to relocate the child unless he or she has received written consent from the other parent or a court.
During a question of relocating a child the court takes the “best interest of the child” into account, considering these factors:
- Is the current child custody arrangement stable?
- Where is the new location? How far away is it from the household of the remaining parent?
- What will be the financial impact (for both parents)?
- Age of the child
- What is the current relationship between the parents and the child?
- Are the parents able to co-parent?
- What are the child’s wishes (this is often dependent on the child’s age)?
- Does the child require special accommodations? If so, are these accommodations available in the new location?
- Reason for the move
- Any additional factors
Modification of Court Orders
A move away request is considered a modification of court orders. If you are looking to modify original orders you need to be mindful of the current custody and visitation rights you have. Consider working with a family law attorney to ensure your move away is done legally and you don’t risk jeopardizing your current agreement.
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