Kelly Rutherford’s Child Custody Case: Monaco Trumps California, Says NY Judge

Actress Kelly Rutherford has been engaged in a squabble with her ex-husband, German businessman Daniel Giersch, about custody of the pair’s two children. Giersch left the U.S. in 2012 after his visa was revoked and took up residence in France and Monaco. According to Rutherford’s lawyer, Giersch had an agreement with a court in 2012 that let him have the children while he resolved work visa issues with the U.S. He filed for sole custody of the children in Monaco.

A Monaco court gave permission for the children to come to the U.S. to visit Rutherford. She failed to return the children by the court’s deadline. A California court had in 2012 awarded joint custody of the children to the two parents. When the latest problems arose, Rutherford went to court in both California and New York seeking to keep the children in the U.S. Giersch’s lawyer has called it abduction and filed a writ of habeas corpus. The latest court in New York ruled against her. Family law lawyer Kelly Chang Rickert discusses the complicated matter in this report.

Kelly Chang Rickert

Kelly Chang Rickert

Rickert opines that this case was really a jurisdictional struggle between California and Monaco. The California judge has determined that California no longer has exclusive continuing jurisdiction. That means that the case goes back to Monaco. Rickert says that the filing in New York makes little sense. Once a court is determined to have jurisdiction over a matter, other courts will not intrude and make conflicting orders. “That would lead to forum shopping.” Under the Uniform Child Custody Jurisdiction and Enforcement Act, the rules are clear.

Rickert says that no court will pay any attention to the argument of Rutherford’s lawyer that the children, as U.S. citizens, have a right to live in the U.S. “There is no fundamental constitutional right to live in the United States.” It’s important to remember that this is a custody case, and the magic words are “best interest of the children.” Likewise, Giersch’s previous legal problems aren’t helpful to Rutherford’s case. The reason for the order sending the children to Monaco is that Giersch is not allowed in the U.S. The original order by the California judge, says Rickert, is what courts generally order: frequent contact with both parents. In this situation, since the father can’t come to the U.S., the children will likely be placed in Giersch’s permanent custody.

As to the future, Rickert thinks the fighting needs to stop. The parties have spent over $3 million in attorneys’ fees so far, and there’s no indication that anything much will change with further litigation. Rutherford’s best option at this point might be to work on fostering a better relationship with her ex-husband and working to get more parenting time that way. Rickert explains that once a custody order has been entered, it is presumed that the arrangement provided by the order is in the best interest of the children. It is very difficult to change an order like that without showing a substantial change of circumstances.

Kelly Chang Rickert (formerly Kelly Yi-Yi Chang) is the founder of the Law Offices of Kelly Chang, A Professional Law Corporation, a firm dedicated exclusively to Family Law. She has been certified by the California State Bar Board of Legal Specialization as a Family Law Specialist. She is frequently quoted in the media, and is a legal expert for CNN News, KTLA, NBC, Style Network, TV Guide and MTV on Mel Gibson, Tiger Woods, Britney Spears, Christie Brinkley,Madonna, Charlie Sheen, and the Kardashians divorce and custody cases. She practices in Los Angeles. The Legal Broadcast Network is a featured network of Sequence Media Group.