Actress Kelly Rutherford is back in the news as the more than six year international custody battle for her children continues its latest chapter.  The case is presently in Monaco where her children are currently residing with their father, German businessman, Daniel Giersch. From a family law perspective, this case addresses almost every issue which judges struggle with on a daily basis. It also shines a bright light on the problematic issues associated with our ever mobile society.

Copyright: olegdudko / 123RF Stock Photo
Copyright: olegdudko / 123RF Stock Photo

For the uninitiated, Kelly Rutherford is an actress who starred on the television show, “Gossip Girl.” In 2006, she became pregnant with her first child, Hermes and married Giersch. In 2008, she became pregnant with her daughter, Helena, and later that year she filed for divorce from Giersch. Both parties sought sole custody of the children in California where the case was initially filed. New York became involved because Rutherford wanted to take the children to New York where Gossip Girl is filmed. Giersch objected to any move to New York on several grounds. In 2009, Rutherford made significant allegations of stalking and other behaviors against Giersch. In 2011, her lawyers contacted the State Department urging that he be arrested. Ultimately, in 2012 his business visa was revoked and he was barred from entering the US. In the custody case, Giersch seeks permission to take the children to France. A full hearing with witnesses was conducted in California. The judge then hearing the case made the determination that, “the best interest of the children will be served because the relocation plan for France is the only plan that offers the possibility of nearly equal parenting time while Giersch cannot return to the US.” He then takes the children to France in 2012 and ultimately moves to Monaco.  In the summer of 2014, Rutherford has the children for summer vacation in the United States and refuses to return the children at the end of her prescribed parenting time. The children were returned to France in August of that year. In 2015, a California court (where the case initially began) granted Rutherford temporary sole custody of the two children, and then shortly thereafter, a different California court ruled that California did not have jurisdiction over the case anymore noting that by that time the children had only spent approximately a week in California in the previous two-year period and that if there was any remaining connection to California it was tenuous. In late summer 2015, a New York judge gave custody back to Giersch and the children were returned to France where the case is currently being heard. Rutherford is now heading there in the latest chapter seeking to gain custody of the children.

A question that has been asked repeatedly in connection with the Rutherford case is why a foreign court has jurisdiction, or the ability to make the decisions with regard to the children, when the case initially started here in the United States. Generally, the state in which the children have resided for the previous six months is determined to be their “home state,” and thus the state where decisions will be made. California, where the parties initially resided did in fact hear the matter. However, when Rutherford’s husband was unable to return to the United States, the judge allowed the children to relocate to France. Absent extreme circumstances, the trend in many states, and in New Jersey, is to give children access to both parents. This is what the judge did when he allowed the children to go to France. The overarching goal in any custody dispute is to have the case heard in the geographical location that can best provide the court with relevant and accurate information about the children. Where are the children’s doctors? Where are the children’s teachers? Where are the witnesses who have access to the children and are in the best position to provide a judge with relevant facts and observations in connection with the children? Typically, this will be in the location that the children have resided for a period of time. As a result, the location which is initially the “home state” of the children may not be the location of where subsequent custody issues are heard. This is precisely what has happened in the case of Rutherford’s children. When a foreign nation is involved, most states treat a foreign country as if it were the state of the United States for purposes of applying the law as to custody of children. This is true in New Jersey which has adopted the Uniform Child Custody Jurisdiction and Enforcement Act.

There are certainly circumstances in which a state can assume jurisdiction to hear custody matter even though it may not be the state where the children have resided recently. The court may take temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or sibling or parent of a child subjected to or threatened with mistreatment or abuse. New Jersey has interpreted this to mean that if there is a bona fide concern that children will be mistreated and irreparably harmed if they are returned to the nonresident parent, New Jersey has and should exercise jurisdiction in order to protect the best interest of the children.

Without question, these cases are extremely complex. Depending on the laws of the country to which a parent is seeking to bring the children, one parent or the other could be placed at an extreme disadvantage. It is important to seek advice and engage in careful planning when entering into relationships in which the circumstances may result in international custody disputes. These situations involve not only situations in which the two people in a relationship come from different countries, but also when couples live in foreign countries as a result of business obligations. Knowing whether the foreign country which is involved is one which will recognize American law is particularly important.  In fact, the California judge who allowed Rutherford’s children to go to France particularly noted that the French court would, to the greatest extent possible, ensure that the order of the California court would be followed once the children were in France.