Before you cry for actress Kelly Rutherford, who was court-ordered to return her two children to their father in Monaco, consider the one thing that she supposedly did that made her lose this custody fight: according to a number of public reports, the Gossip Girl series star has repeatedly thwarted Daniel Giersch's relationship with their kids Hermes, 8, and Helena, 6. Custodial parents must look out for the best interests of their children, and one of the most important of those interests is having a relationship with the other parent.
Rutherford, by all accounts, started losing her fight for custody the moment she started interfering with dad's relationship and access. Now, she's suffering some rather extreme consequences. To be clear, I am not representing either party in the Rutherford-Giersch custody battle and have relied upon a number of news media and public reports regarding the facts of the case.
There is almost nothing that is as important as a child's relationship with a parent. Maybe mom and dad no longer get along, but that child remains tied to each parent. Of course issues of the child's safety are a primary concern and another factor in determining custody. But, in the case involving Rutherford, there doesn't appear to be allegations that Giersch is a danger. Instead, the media reports a number of allegations about the actress's conduct that range from not telling Giersch about the birth of their second child to refusing to place his name on the birth certificate despite a court order.
After apparently settling on a "temporary" joint custody agreement, Giersch later had his US visa revoked, preventing him from visiting the kids in the US. Allegedly, the actress was one source that led to the immigration problems.
Once Giersch was prevented from entering the country, Rutherford asked for sole custody, but the California court instead ordered the children to Europe to be with dad, presumably in line with their joint custody agreement. It seems the court reasoned that mom could travel to see the kids, while dad could not. That started some serious problems for Rutherford, because while the California judge supposedly noted that custody might be revisited after a few years, the children were living out of that state that entire time.
This is where legal procedure gets messy. Generally, states lose important connections with kids when they are out of the state for six months or more (a legal term called "jurisdiction"). Later, when Rutherford again requested a custody change, the California court found that it didn't have jurisdiction. Perhaps some blame may fall with her attorneys for not striking a better time-share agreement that would have helped California stay connected with the kids. Rutherford herself has been residing between California and New York. Because the children have resided abroad for so long, the courts in the US are pointing to Monaco as the proper location for the custody fight.
Finally, in yet another ill-advised move, Rutherford attempted "self-help" by withholding the children. Refusing to return the kids forced Giersch's camp to file an emergency request to have a New York court order the children's return. That worked, in part, because the United States is part of an international agreement to cooperate in returning children who are "abducted" by parents (called the Hague Convention), but also because the prior court orders gave dad residential custody. The New York judge was simply following the law.
Rutherford may be a very good mother. And I'm sure she loves her kids. But a court looking at the "best interests of the children" will nearly always side with a parent who facilitates and supports the other parent's access and relationship with the kids over a parent who intentionally interferes. In this fight, Rutherford appears to be her own worst enemy. A hearing is set in Monaco on Sept. 3.
Factors that determine the child's "best interests" vary, but can also include:
- The child's wishes, as well as the age and sex of the child
- The mental and/or physical health of the parents
- Whether any religion or cultural issues exist
- The stability of the home environment
- Whether there are other siblings in the home
- Adjustment to school and the community
- The substantiation of any abuse or neglect allegations
Do you think the courts' decisions have been fair to Rutherford? Should the children be returned to the US? Join the discussion in the comments.