Rutherford Loses Custody

Last week a Manhattan Supreme Court judge ordered actress Kelly Rutherford to return her two children to their father, Daniel Giersch, who lives in Monaco. In doing so, the custody battle between the two rages on.

Custody Battle

The judge’s decision came after the 46-year-old actress failed to send son Hermes, 8, and daughter Helena, 6, back to Giersch after spending the summer in New York with her.

“From the beginning I have said I will fight for my children,” she said in an interview.

It seems Giersch’s attorney are happy with the decision. “We are pleased that the American judicial system has prevailed,” said Giersch’s attorney Fahi Takesh Hallin. “Daniel’s request to exclude the press today from the courtroom was granted, to protect the children’s privacy. In addition, his stance of promoting Kelly’s time with the children has not changed.”

The custody battled has raged since 2012, when a California judge ruled that the children should live in France with their father after his U.S. visa was revoked. Since that ruling, Rutherford has fought to bring her children back to the U.S., but neither California nor New York have jurisdiction in the case.

“It puts me as a parent in an odd place if no one is taking jurisdiction,” she has said. “How do you put your kids on a plane not knowing what is going to happen?”

Giersch’s mother was in court to greet the children and return them to Monaco following the judge’s ruling.

Rutherford was supposed to have sent the children back earlier in the week, but released a statement announcing her decision to keep the children, writing, “I have decided that I cannot lawfully send my children away from the United States to live in a foreign country.”

Giersch’s legal team immediately fired back following the release of Rutherford’s statement, issuing a letter demanding that Rutherford send the children back to Monaco immediately. The letter was followed with a filing in New York County Supreme Court.

Experts Weigh In

According to Dan Abrams, chief legal analyst for ABC News, Rutherford’s decision to keep her children in the U.S. was a “risky move.” He believes the U.S. State department has “to get involved now.”

“I called for them to get involved a while ago when [the kids] were in Monaco, saying they should bring the kids back,” he said. “I think they are going to have to get involved, I think they are going to have to make an incredibly hard decision.”

Rutherford Goes Before Congress to Discuss Custody Issues in U.S.

In late July of this year, Rutherford went before congress to testify during a hearing about “left behind” children.

“Nobody in this country seems willing or able to do anything to help bring my American children home, even though this is the country that sent them away,” she said. “I can only see this as a legal kidnapping by a California judge forcing my children to live abroad for so long that the other countries seize control over their lives. I just ask each of you here today how it is possible that two American citizens have been ordered by their own government to live in exile in a foreign country?”

The former star of Gossip Girl went in front of Congress to support the Sean and David Goldman Child Abduction Prevention and Return Act. The law went into effect last August and gives the State Department the authority to bring American children who have been kidnapped and taken overseas back to U.S. soil. According to Congressman Chris Smith of New Jersey, who wrote the legislation, the White House’s report on the act’s progress had “major gaps.”

Child Custody Issues

As this case proves, there are a number of issues that can arise during child custody battles. Working with a family law attorney is the best way you can fight for your parental rights.

Determining Custody

Full child custody, also known as sole custody, means all legal parental rights are assigned to just one of the parents. There are two kinds of “sole” custody:

  • sole physical custody – the child lives with the parent, and
  • sole legal custody – the parent has a legal right to make decisions for the child.

Most family law courts award joint custody, because it has been found to be in the best interest of a child to be raised by both parents. Usually when a parent files for sole custody it is because they see the other parent as unfit to take care of the child. This can be for various reasons, including: inability to provide for child, abuse, or a history of abuse or addiction.

Family Fighting

Filing for Full Custody

Seeking full custody can be difficult if you are unable to prove that the other parent is unfit. There are some steps you’ll want to take:

  • Talk to afamily law attorney. A family law attorney will be familiar with the laws regarding custody and how to advise you based on your specific case.
  • Learn about what petition to file. A family law attorney can help with this, but if you are planning on working without one you can go to a local court or online to determine the paperwork you need to file. Each state has its own laws regarding child custody cases (which is why it’s advised to work with a family law attorney). Here are a few petitions that may apply:
    • Petition to establish custody
    • Petition to revise or update a petition that’s already in place
    • Petition to establish paternity (if the paternity of the child is questioned you will also need to file a petition that mandates a paternity test be completed before the custody request is considered) and install custody
  • Fill out all of the required paperwork and file the paperwork in court. If you are working with an attorney he or she will review everything before you file it in court. You will want to make sure you make copies for your files and for the other parent’s files. The court will keep the original. Once a petition has been filed you will receive a court or mediation date. Both parents are required to be in attendance. If an agreement cannot be made at that date, the case will need to go in front of a court.

Move Away Child Custody

Move away child custody cases can be some of the most difficult child custody decisions, especially if a parent seeks to relocate to another part of the country, or even out of the country. When a custodial parent makes the decision to move it can make it seem almost impossible for the other parent to stay involved in their child’s life. But if the custodial parent’s request is denied by a court, and they are still forced to move away as a result of a job or remarriage, it can mean separating a child from the parent they feel the closest to.

California’s Child Custody and Relocation

States have different laws regarding move-away relocation custody. Typically determining what’s in the best interest of the child is a main governing practice. California is a state with permissive move-away laws. So, often, the non-custodial parent must prove that the move will be harmful to the child’s well being.

Major Factors for California Courts

Here are some considerations California courts take into account when deciding on move-away relocations:

– Will there be stability and continuity in the child’s life?

– How far is the distance of the move?

– If there a strong and necessary reason for the move?

– How old is the child?

– Will the parents be able to still co-parent?

– What does the child want? (This will be based on if the child has been deemed responsible and mature enough to make this decision)

– What are the child’s individual relationships with each parent like?


If you are being faced with child custody relocation, you’ll want to work with a skilled and experienced attorney. Often time these cases can be difficult, especially if you are the non-custodial parent fighting against relocation. An attorney will be able to look at your case and determine the best course of action.

Next Court Date for Rutherford

The Rutherford-Giersch case is an interesting one due to the fact that Giersch’s U.S. visa was revoked for unknown reasons. The next court date for the couple is Sept. 3 in Monaco. It’s expected that the two will work out custodial decision making in addition to other matters.

Working with a Divorce Attorney

Regardless of what process you use, either mediation or a standard divorce, or what level or marital property or child support you are seeking, the divorce process is a difficult one, but one that can be aided by the help of a divorce attorney. There are many aspects of a marriage that must be decided, including child custody, marital property, and alimony. Working with a divorce attorney is a way to make the process smoother. If you’re considering divorce, you should also consider a divorce attorney like the ones at Law Offices of Korol and Velen, Certified Family Law Specialists.

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