International Custody Battles: Which Law Governs

International custody battles between parents are a growing concern for disputing parents. Children involved will ultimately suffer a loss of having a day-to-day parent, while frustrated parents spend months on end missing their children grow up. What is the remedy when a child is ripped from their “habitual residence,”[1] where they have resided since birth, to live with a non-custodial parent in a different country? An example of an extreme international custody battle would be the publicized custody battle between Kelly Rutherford and Daniel Giersch.

Over the past six years, Kelly Rutherford, a well known actress, has been engulfed in a heated custody battle over her two American born children who were ordered to live with their father in Monaco, France. This outcome was seen as a very uncommon custody arrangement due to the fact that both children had continuously resided with their mother in the United States, primarily California, since birth.

Giersch & Rutherford’s first child, Hermes, was born in late 2006 after both parties wed earlier in the same year. Approximately two years later, both parties terminated their marriage & commenced a custody dispute while Rutherford was pregnant with their second child, whom she gave birth to in June of 2009. [2] Around late 2011, Giersch’s work visa was ultimately revoked which forced him to leave the country, which he subsequently accused Rutherford and her lawyer of putting into motion. [3] In the summer of 2012, due to his frustration, Giersch took both of the children to Monaco, France to be with him without Rutherford’s permission. [4] The children continued to reside in Monaco, for four months, until the custody dispute was settled, which ultimately led to the court granting both parties joint and legal custody of the children but allowing the children to relocate to Monaco. [5]The court based it’s decision on a few key factors: Giersch could not enter the U.S. to see his children, Rutherford wasn’t forthcoming with her work schedule, and the court believed Rutherford wouldn’t foster an adequate parenting plan to accommodate Giersch and facilitate a healthy relationship between the children and their father. [6]The decision was handed down in December of 2012, which Rutherford appealed and lost in 2013. [7]

By May of 2015, Rutherford was able to get a temporary custody order to hold her children in the U.S. during their scheduled summer visitation. [8]However by July, the California court revoked the order claiming that California no longer had jurisdiction over the case, which led to Rutherford ultimately surrendering her children to Giersch’s mother at a NYC Courthouse. [9]This admission by the court ultimately had the case removed to a court in Monaco where the children reside with their father. [10]

The question of jurisdiction is similar of that of In re Marriage of Nurie, where a California court established jurisdiction over a Pakistani court under the Uniform Child Custody Jurisdiction and Enforcement act.[11] The California Court of Appeal concluded that since the marriage had been dissolved in the home state of California, the California court never lost jurisdiction to determine whether a custody order could be granted. [12] The Court found no evidence to suggest that the children ceased residing in California prior to the custody proceedings. However, in Ms. Rutherford’s case her children haven’t resided in the U.S. permanently for approximately three years and her residence is primarily in New York where she was employed as an actress on the former series “Gossip Girl.”

The question of custody is more complicated because it’s rare for a court to award custody to a parent in a different country. The court’s reasoning in this case is quite questionable, unless the court determined Rutherford would be a non-compliant parent. Looking toward case law and relevant statutes, specifically the Hague Convention Petitions on International Child Abduction, there must be serious concerns for a court to grant a father who ultimately “kidnapped” his children from their habitual residence, sole and legal custody. If that was the only deciding factor, then abducting parents would have their way and the Hague Convention would have ultimately no use.

After examining the State of Decision handed down by the California Court, it is evident that the Court weighed a number of factors heavily: Rutherford’s lack of facilitating a relationship with the father of her children, Rutherford’s work schedule, which parent provided a more stable environment, Rutherford’s pattern of alienating the children from their father, Rutherford’s role in facilitating the revocation of Giersch’s visa, and other important factors. The court stressed Rutherford’s reluctance to facilitate a relationship between her children and Giersch. The court noted that, “Kelly has declined to demonstrate the level of commitment to facilitating the other relationship with the children that would be required of a residential parent in a relocation situation.” The court also noted that the “New York Plan” was inferior to the “ France Plan.”[13] The New York plan proposed by Kelly did not facilitate a convenient nor consistent method for her children to maintain a relationship with their father due to the United States revocation of Giersch’s visa. One provision in the “New York” plan provided that the children could only see their father in third- world countries, such as the Bahamas, which would disrupt their day to day life.[14]

After careful examination, although Rutherford might be suffering a grave injustice within the media as a scorned mother missing her children, the California court did not weigh all the factors in her case lightly. The consistent theme echoed by the court was the facilitation of a relationship between the children and both parents. Although it may seem harsh to send two American born children to another country, it is clear in this case that the court weighed a history of alienating her children heavily. Rutherford and Giersch’s case is currently being adjudicated in Monaco, France as she fights to have her children returned to the U.S.


Shani Walker is a 2L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[1] Habitual Residence Definition, Duhaime’s Law Dictionary available at

[2] Kelly Rutherford’s Custody Battle : “I’m Afraid I Might Never See My Children Again” available at

[3] Id.

[4] A timeline of Kelly Rutherford’s Six Year Custody Battle available at

[5] Id.

[6] Id

[7] In re Marriage of Giersch, Case No. SD 026 864 1,45 line (Cal Super. Ct 2013).

[8] See Supra note at 4.

[9] Id.

[10] Id.

[11] In re Marriage of Nurie, 176 Cal. App. 4th 478 (Cal. App. 1st Dist. 2009).

[12] Id.

[13] The New York Parenting plan was proposed by Rutherford’s attorney & The France plan was proposed by Daniel’s attorney.

[14] In re Marriage of Giersch, Case No. SD 026 864 1,38 line 5-8 (Cal Super. Ct 2013).

How A Bill Becomes A Law

“We are not well served when, in response to a terrorist attack, we descend into fear and panic. We don’t make good decisions if it’s based on hysteria or an exaggeration of risks.”

-President Obama


On Nov. 19th, 2015 the House passed bipartisan legislation for stricter screening for refugees trying to enter from Syria. Obama has openly expressed his disagreement with the legislation stating, “Apparently, they’re scared of widows and orphans coming into the United States of America as part of our tradition of compassion…. That doesn’t sound very tough to me.” Vice President Biden stated that refugees from Syria have to face “the most rigorous screening.” The bill passed in the house in a vote of 289 to 137 with support from some Democrats.

It takes about two years for Syrian refugees to enter the U.S. there are many layers of screening and Syrians may face even more if the bill becomes law. Since 2011 less than 2,000 Syrian refugees have been admitted. The steps listed below are pulled directly from a New York Times article:

  1. Registration with the United Nations
  2. Interview with the United Nations
  3. Refugee status granted by the United Nations
  4. Referral for resettlement in the United States
  5. Interview with the State Department contractors
  6. First background check
  7. Higher-level background check for some
  8. Another background check
  9. First fingerprint screening; photo taken
  10. Second fingerprint screening
  11. Third fingerprint screening
  12. Case reviewed at United States immigration headquarters
  13. Some cases referred for additional review
  14. Extensive, in person interview with Homeland Security officer
  15. Homeland Security approval is required
  16. Screening for contagious diseases
  17. Cultural orientation class
  18. Matched with an American resettlement agency
  19. Multi-Agency security check before leaving for the U.S.
  20. Final security check at an American airport

Coming to the U.S. as a refugee is no easy feat despite the country one hails from, but as a Syrian the wait is long and arduous. A family, of a 33 year old man, his 23 year old wife and their five year old son, fled Syria to Jordan, but anxiety grew as they were unwelcomed in Jordan. After three years of going through the above mentioned steps they were granted refugee status in the United States. Unfortunately, as they were mid-flight, Governor Pence of Indiana announced that he would no longer welcome Syrian refugees in his state and ordered the Indianapolis resettlement organization not to accept any Syrian refugees. This family was forced to be diverted from their long awaited future. Fortunately the Integrated Refugee and Immigrant Services in New Haven arranged to resettle the family soon after they landed.

If the bill becomes law the director of the FBI, the secretary of Homeland Security and the Director of National Intelligence has to confirm that each applicant from Syria and Iraq pose no threat. The White House’s response, more specifically that of the President, is a promised veto if it manages to pass in the Senate. According to another New York Times article, two dozen governors have said they would try and impede Syrian refugees from entering their state and a Bloomberg poll shows that more than half of the country agrees with these governors. President Obama has stood against the rising majority, tweeting that he will admit at least 10,000 fleeing Syrians (after passing the highest security checks). Despite the clear stance in the House and in the White House, the fate in the Senate is not as clear. FBI Director Comey has expressed concern that this bill could make it impossible to allow refugees into the U.S.

Ginny Nunez is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

Citations to articles & documents are included in the aforementioned underlined hyperlinks.

Misplaced Fear

The buzz and fear generated by ISIS around the world can be felt here at home amidst political campaigns and foreign policy. On Saturday November 21, 2015, President Obama vowed to keep America’s borders open to the world’s refugees. However, with the most recent terror attacks in Paris, the House passed legislation that calls for restrictions and stricter screening for refugees hailing from Syria. This screening process can take up to two years. The bill passed by a vote of 289 to 137, 50 of which were Democrats. If passed in the Senate, the numbers might override President Obama’s veto. During President Obama’s visit to the Dignity for Children Foundation in Kuala Lumpur on Nov. 21, Obama noted America should not be closing its doors to the children and orphans around the world facing persecution, discrimination and ethnic violence, like the kids in the center who fled violence in Myanmar. Obama stated, “the refugees from Myanmar- again, mostly Rohingya, Muslim- those young children up there, they’re deserving of the world’s protection and the world’s support.” He went on to explain that America’s global leadership is expressed in its willingness to help people who have been discriminated against, tortured or subjected to violence. Upon his return he is scheduled to meet with President Francois Hollande to discuss the terror attacks in Paris.

The legislation passed by the House spurs from the fear of allowing members of ISIS into the country under the guise of refugee status, leaving America vulnerable to an attack. Unfortunately potential perpetrators are more likely to be native-born Americans. A survey of Americans who have been charged with helping ISIS concludes that out of the 68 charged, none are Syrian or Syrian-American, and only 3 are refugees. Fordham University Law School’s Center on National Security data shows that four out of five U.S. residents charged are American citizens, and about two thirds are U.S. born. The center found no trend suggesting refugees are more likely than not to be involved in ISIS cases.

The center came out with a series of data points replicated below:

  • 55 of the 68 arrested are U.S. citizens. Of the 55 citizens, 12 were naturalized, the rest American-born.
  • Of the 25 not born in the U.S., seven were born in Europe — all from the states of the former Yugoslavia; another six in Africa –Somalia, Ghana and Sudan; six were born in the Middle East — one each from Saudi Arabia, Iran, Iraq, Yemen, Egypt and Palestine; five were from Central Asia –Uzbekistan and Kazakhstan; and one was from Cuba.
  • At least one-third of those arrested are converts to Islam.
  • More than half of those charged, 36, allegedly wanted to travel to Syria to fight. Eighteen allegedly aspired to be domestic plotters, and Greenberg said the Justice Department’s most recent investigations appear to be more focused on domestic plotters. The other 14 were a mixture of alleged aspiring recruiters and cyberterrorists.
  • Eight have previous criminal records and many had been prescribed psychotropic drugs.
  • Eight have family ties to others charged, which supports Greenberg’s long-held belief that family radicalization is at least as important as radicalization through exposure to online jihadi propaganda.
  • Most were men, but 10 of the 68 were women. The average age is 26.4 years, with the youngest in their teens and the oldest 44.
  • The 68 come from 20 states, with New York and Minnesota accounting for 21 cases — 12 in New York, nine in Minnesota.

The fear and response to refugees being terrorists is misplaced. Currently the FBI has over 900 open investigations into homegrown extremists. These extremists have either been radicalized by ISIS or by sympathizers already in America. According to Time, the number of homegrown followers is in the thousands immensely surpassing the number of followers that al-Qaeda ever had. The former director of the CIA predicts that the threat from ISIS against America will become a matter of when. The recent attack against Paris is a demonstration of the strength and ability ISIS has, keeping in mind that that attack’s initial planning began less than a year ago. Foreign policy and strategy is vital in combating ISIS’ growing strength and influence, but shutting the doors to those who most need it isn’t the answer.

Ginny Nunez is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

Citations to articles & documents are included in the aforementioned underlined hyperlinks.

When Does Free Speech on Social Media Cross the Line and Become Terrorism?

Social media usage—Facebook, Twitter, Instagram, and Tumblr— by millennials to express their political and social viewpoints has spurned everything from a late night ‘Like’ by a friend to the political upheaval of the Arab Spring. Its impact and reach should not be underestimated, nor can internet postings and pictures be relegated to unimportant drivelings of disaffected dissidents and wannabe terrorists. Today’s message board commenter could be tomorrow’s suicide bomber. How far then should legal protections surrounding the First Amendment extend?

What people say behind the façade of a computer screen either under the blanket of anonymity or signed under their own names is in fact taken very serious by law enforcement authorities. Especially when such espousing and calls for violence are tantamount to support for what is commonly regarded as ‘Terrorist’ related activities.

Take for example the recent FBI arrest on November 12, 2015 of twenty-five year old Ohio hospital worker Terence J. McNeil. Mr. O’Neil was arrested in a criminal complaint filed in the United States District Court for the Northern District of Ohio for 18 U.S. Code § 373 – Solicitation to commit a crime of violence.

According to court documents, in their description to the New York Times, federal authorities believed that through his postings McNeil moved away from criticism of U.S. policies to criminal acts when he began posting detailed information about military members and calling for them to be murdered. Specifically, McNeil is accused of reposting and retweeting memes and gifs from a group that titles itself the Islamic State Hacking Division, with information that was hacked and leaked which included the names, addresses, photographs and military branches of dozens of American service members, and which stated the following: “Kill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking that they are safe.”

Mr. McNeil had a Tumblr blog website whose content has since been removed. The website Gawker, was able to screen shot some of the tweets and pictures associated with his website (as it was still electronically available at the time the Times article and federal press release were issued). McNeil’s posted content ranged from seemingly comical Islamic related religious memes and Simpsons’s jokes to violently suggestive memes advocating for murder. Posts can be seen here.

In a press release, Special Agent-in-Charge Stephen D. Anthony of the FBI’s Cleveland Division said “While we aggressively defend First Amendment rights, the individual arrested went far beyond free speech by reposting names and addresses of 100 U.S. service members, all with the intent to have them killed.”

Mr. McNeil now faces an intense criminal litigation process by the Justice Department and the U.S. Attorney’s Office for the Northern District of Ohio. As it is still early in the process, surely free-speech advocates will attempt to use Mr. McNeil’s case as an example of over intrusive federal overreach when it comes to internet free speech. However if the recent Parisian terrorist attacks are any indication, the Islamic State (ISIS) is a skilled communicator at reaching their audience and attracting new members through the use of English-language social media, and the posts of its supporters should not be taken lightly.

However in an ironic foreshadowing post on Tumblr just a few months prior, when another poster asked McNeil if his account was a fair representation of him. “Somewhat about 60%,” McNeil answered. “If it was 100% I would be in jail.”


Anthony Christina is a 3L and a Resident Student Blogger for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

Citations to articles & documents are included in the aforementioned underlined hyperlinks.