People Magazine has an overview of Kelly Rutherford’s custody case and while it’s a bit TL;DR it’s interesting for the fact that it sounds straight from Kelly. Their article is biased in favor of Rutherford, of course (we’ve been accused of the opposite), and pretty much outlines her legal strategy. (I’m not going to recap Rutherford’s custody battle because most of you know the story. If you’re not familiar with the case, please read this story or this story for background.)
The last we heard from Rutherford, a California judge had awarded her temporary legal custody of her two children, who are currently in Monaco, where they reside with their father, Daniel Giersch, a German citizen. This occurred after Giersch refused to let Rutherford take the children with her to New York for a scheduled summer visit. Rutherford would have been allowed to take the children if she had agreed to surrender their American passports, as was stipulated in their custody agreement. Giersch’s lawyer argued that Rutherford’s recent statements to the press made the children a risk for kidnap and necessitated this step. It seemed reasonable to me, but obviously Rutherford disagreed and took legal measures.
As for what’s next, Rutherford is legally entitled to take her children, son Hermes, 8, and Helena, 6, back to the US so that they can attend a hearing on June 15. Giersch cannot come to the hearing as he is not allowed to enter to US, but it’s assumed he’ll send a lawyer. It’s possible that he’ll block Rutherford from returning with the children, but that would be held against him in court. Here’s more of People’s report:
It’s a win for the former Gossip Girl star: In 2012,a judge decided that Hermes and Helena would live in Monaco and France with Giersch even though the couple shared joint custody because his visa had been revoked. (Giersch’s team has not commented on the court order.)
Though this new order – which came after Rutherford told PEOPLE that Giersch would not allow her to see the children on a visit last week – means her kids will come home, it shouldn’t necessarily be interpreted as a sign that they’ll stay here.
“It’s a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out,” Nancy Chemtob, a New York family and divorce lawyer not involved in the case, tells PEOPLE.
Still, Dan Abrams – ABC’s legal analyst and Mediaite founder, who has written articles supporting Rutherford’s cause for years – calls the development a “big victory” for the mom.
“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,” he tells PEOPLE.
According to the court order, Giersch “is alleged to have committed numerous violations” of the 2012 judgment. Rutherford’s claims that he was not letting her spend time with the children or bring them back to America for visits, along with the fact that he never reapplied for a U.S. visa, are the basis for her application. (A former lawyer on Rutherford’s team was allegedly responsible for the revocation by reporting the German businessman’s allegedly illegal activities to the State Department. She has denied 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,’ ” Chemtob says. “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 do have to be back in the United States by June 15. The California court has asserted jurisdiction over the children, who are U.S. citizens.
Plus, Monaco is a signatory to the Hague Convention, an agreement among more than 90 nations to protect the interests of children and comply with other countries’ legal proceedings.
An attempt by Giersch to keep his kids in Monaco “would be a violation of the court order and the breach of it is hugely severe,” Chemtob says. “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.”
As for the estranged couple’s day in the Los Angeles Superior court, Abrams says the existing 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.”
There are many more quotes from People’s legal expert as to how this could play out. She thinks there’s a 50/50 chance that Rutherford could be allowed to keep the children full time in the U.S., however it’s unlikely that a final decision will be made at the hearing on June 15. Rutherford’s good friend, Daniel Abrams, thinks there’s an even better chance that she could regain custody, “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.”
I bet that Rutherford is hoping it plays out like this. She’s the one who got her ex kicked out of the country, and she’s the one who said that “whoever brings my kids home is going to be pretty much a hero.” The court found that Giersch didn’t allow Kelly to visit her children “on at least two occasions” since October 2014. So in three years, Giersch has only blocked Kelly from seeing the kids twice, (if it was more than that you know she would have brought it up) and the last time was after he legitimately feared for their safety and asked her to first comply with part of their custody agreement. Throughout all that time, she’s done interviews in which she’s admitted to telling her children that she’s “fighting” for them and in which she’s tried to frame this as a “Constitutional problem” and an issue that affects “American citizens.” Sounds like parental alienation to me, but I’m just watching from the cheap seats.
Header image is from 5-5-15. Colorful dress photo from 4-25-15. Other images from 2014. Credit: FameFlynet