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 http://www.duhaime.org/LegalDictionary/H/HabitualResidence.aspx

[2] Kelly Rutherford’s Custody Battle : “I’m Afraid I Might Never See My Children Again” available at http://www.hollywoodreporter.com/features/kelly-rutherfords-custody-battle-im-828400.

[3] Id.

[4] A timeline of Kelly Rutherford’s Six Year Custody Battle available at http://jezebel.com/a-timeline-of-kelly-rutherfords-six-year-custody-battle-1723436378.

[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).