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Gossip Girl Actress in International Child Custody Battle; Oct. 26 Hearing in Monaco

Crumrine 2By Rebecca Crumrine Rieder, Hedgepeth, Heredia & Rieder

Actress Kelly Rutherford’s has been receiving a lot of press lately. Rutherford, an actress best known for roles on Melrose Place and Gossip Girl, is engaged in a bitter custody dispute with her German ex-husband, Daniel Giersch.

The case involves a number of important issues regarding custody of children where the parents reside in different countries, and highlights the potential pitfalls of changing jurisdictions during custody proceedings. What’s interesting in this case is that even before the custody issues can be heard, the question of jurisdiction has to be resolved.

The jurisdictional issues around custody cases involving parents (and children) with dual citizenship will only become more common as our world "shrinks" due to ease of travel.

 Hague Convention Dictates International Custody Issues

rutherfordThe Hague Convention dictates the law if the custody case is between the residents of two member countries. In the Rutherford case, custody is split 50/50 between the mother, an American resident, and the father, who lives in Monaco. Further complicating matters is the fact that Rutherford has moved back and forth between New York and California, muddying the issue of where she resides.In an international case, jurisdiction belongs to whomever has the current custody order. 

The Hague Convention is an international agreement between courts with provisions established to ensure that custody hearings take place in the best interests of the child. It states that jurisdiction is based on where the children reside. For most of the last three years, the children have been living in Monaco, but for the last two months they have been living in New York.

Because Rutherford has only lived in New York and California, it might seem obvious that the custody must lie in one of those states. But actually, because the case takes place across international borders, the provisions of the Hague Convention come into play.

Here are some of the key points of the dispute:

  • The children, who came to the U.S. to be with Rutherford in July of this year, were scheduled to return to their father in Monaco on August 7, but Rutherford announced that she would not abide by that deadline.
  • Giersch’s attorney accused the actress of child abduction, saying that the children are “habitual residents” of Monaco. However, the Hague Convention states that if a parent has made an agreement not to establish a child’s residency in a foreign country, especially one where the child is not a citizen, that country cannot lawfully claim the child as its own resident.
  • Rutherford’s attorney maintains that her children are American and that Giersch agreed in 2012 not to pursue habitual residence for the children in any other country.

"The Court intends that each child's habitual residence will remain the United States, and that any foreign travel or stays in other countries will be temporary in nature, and not result in a change of either child's habitual residence, or of jurisdiction to modify custody and visitation orders, or issue new custody and visitation orders," California judge Teresa Beaudet wrote in an October 2012 judgement.

Rutherford did agree to return the children on August 11, and a hearing in Monaco is scheduled for Oct. 26. Giersch and Rutherford will need to be present at that hearing. Based on the finding above, It is possible at that point the Monaco court may decide to cede jurisdiction to the New York Court.

Custody Battle on the International Stage

This is a larger scale, a more complicated version of what happens often when parents divorce and one parent, especially the custodial parent, moves to a different state. For example, if a couple from Georgia gets divorced and one moves to another state, say Tennessee, these issues might come into play. In such a situation, if either parent wants to bring a custody case it must first be filed in Georgia.

  • Georgia has what is known as exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) enforced in all fifty states.
  • However, if the custodial parent can prove that Georgia is a “non-convenient” forum for the hearing, it can be moved to Tennessee. The case must first be filed in Georgia, and the Georgia court will talk with the Tennessee court to determine if Georgia is truly non-convenient.
  • For instance, if all the witnesses – teachers, friends, doctors – reside in Tennessee, then Georgia is clearly non-convenient. If the custodial parent cannot provide a compelling reason to the court to switch venues, then the case will remain in Georgia.

There are many reason why parents relocate following a divorce, but thinking ahead to potential custody issues can help minimize the disruption to children of protracted custody hearings.

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Timeline of the Kelly Rutherford custody case:

  • 2006: Rutherford and Giersch are married.
  • 2008: Rutherford files for divorce while pregnant with their second child.
  • 2009: Couple reaches a settlement of joint legal and physical custody.
  • April 2012: Giersch deported by U.S. State Department (because of information given to the State Department by Rutherford’s attorney), and becomes unable to enter the U.S. to visit his children.
  • May 2012: The children go to France to spend the summer with their father. At that time Rutherford asked the court to grant her sole custody so she could keep the children in the U.S., as the existing joint custody agreement required her and the children to travel frequently to visit Giersch, since he could not travel to the U.S. Giersch has not since reapplied for a visa.
  • August 2012: A California Superior Court judge rules that the 50/50 custody arrangement should remain, and moreover, that since Giersch is unable to enter the United States, the children should live with his mother in France and attend school there. Rutherford, as the parent who can cross borders at will, is required to travel to visit them. Thus, the judge placed the American children in French custody.
  • May 2015: Rutherford is granted temporary sole custody of her children by a California judge following a ruling that the children be brought back to the U.S. The children return to live with her in July.
  • July of 2015: A California judge rules that the state does not have jurisdiction because Rutherford now lives in New York, and the custody reverts to Giersch. Rutherford then files a case in New York but the New York court also rules it did not have jurisdiction. Giersch files a claim that the children are “habitual residents” of Monaco and that the hearings should be held there.
  • August 7, 2015: Rutherford decides against returning her children to Monaco, preferring instead to attend a custody hearing scheduled for Sept. 3 in Monaco.
  • August 11, 2015:  A New York judge orders Rutherford to return the children to Giersch in Monaco immediately.

Sources:

http://www.people.com/article/kelly-rutherford-new-york-fashion-week

http://www.people.com/article/kelly-rutherford-lawyer-wendy-murphy-custody-battle-appeals

Final hearing from 2012: http://images.eonline.com/static/news/pdf/RutherfordRuling.pdf