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Kelly Rutherford Custody Battle

International custody is a popular topic among the celebrity gossip magazines recently, focusing on the custody battle between United States citizen and actress Kelly Rutherford and her ex-husband, German businessman, Daniel Girsch, over their two minor children. Rutherford and Giersch currently share custody, but Rutherford has been trying to move the children home to the United States permanently.

Six Years of Custody Battles

The parties married in 2007, welcoming their first child the next year. By 2009, while three months pregnant, Rutherford filed for divorce and legal separation from Giersch. The divorce was finalized in June 2010. When the parties separated, they agreed to a 50/50 physical custody schedule. In April 2012, Giersch’s business visa was revoked, and he was barred from entering the U.S. The State Department stated the reason for this was classified.

That same year, Rutherford requested sole custody of the children so they could remain permanently in the United States with her. After a lengthy trial, a California judge denied her request and found that the parties’ agreed upon 50/50 custody arrangement was in the best interest of the children and should continue. The court ordered the children live with their father in France, and granted liberal visitation for Rutherford. This means that Rutherford had to travel extensively in order to see her children for the past few years. The court also ordered the matter be reviewed in two years, giving Giersch time to reinstate his visa.

However, in 2014, Monaco accepted jurisdiction of the custody case and declared the children and father residents of Monaco, per the father’s request. At that time, Giersch and the children had been residing in Monaco for a period in excess of two years. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) only a six month residency period is required for Monaco to be named the children’s “home state.”

In May 2015, when Rutherford again petitioned the California courts for primary custody, a judge granted her temporary sole custody of the children, and ordered them to return to the United States. Just two months later, the California court no longer had jurisdiction to hear the custody case because Rutherford no longer resided in California. Rutherford then filed for custody in New York less than four days later, but was informed by the New York court that it, too, did not have jurisdiction.

Why no Jurisdiction in California or New York?

When there are multiple states competing for jurisdiction over a custody case the court must determine which state represents the “home state” of the child. Under the UCCJEA, this is where the child resided for the past six months or where the parties and/or the child have “significant connections.” Regarding the Rutherford case, neither California nor New York qualified as the children’s “home state,” nor did either court find many “significant connections” between the children and New York or California. Because the children have lived abroad since 2012, their schools, activities, and friends were located in Monaco, not the United States. With each passing day that the children continued to reside in Monaco, their connection to that country became stronger while their connections to the United States became weaker.

Constitutional Rights at Play

Rutherford’s attorney, Wendy Murphy, believes that by ordering the children to live in France, the California judge exceeded her authority, and infringed on the children’s constitutional rights. She cited the 1967 U.S. Supreme Court case Afroyim v. Rusk, (1967) 387 U.S. 253, which guarantees that no American can be deprived of citizenship unless he or she willingly renounces it. Other legal analysts have gone as far as to classify the court’s custody order as an act of “exile” for the children.

“There has never been a case of a family court judge issuing an order commanding American citizen children to live in a foreign country. And our concern is that if we don’t prevail [on appeal], this will set a very dangerous precedent,” Murphy told People Magazine. Others disagree with this analysis, and say this is merely an issue of jurisdiction, based on the best interest of the children.

What’s Next

This is not a case where either parent was declared unfit. In fact, it seems both parents are capable of providing financial, emotional and physical support for their children. However, the analysis does not stop there. A court in California, for example, would consider several other factors before ordering a custody schedule.

One factor is whether a party is likely to encourage and permit frequent and continuing contact between the child and another party. This factor may be Rutherford’s weakness. First, she filed for sole custody in the United States after the parties were exercising shared physical custody for two years. In addition, the father has testified in the past that he only learned of his daughter’s birth through media outlets, not Rutherford herself. Testimony was also provided that father found it difficult to communicate with the children while they were in Rutherford’s care, while the children frequently communicated with their mother by Skype while in father’s care. Most damaging, Rutherford refused to return the children to Monaco after a summer visit to New York, and had to be court-ordered to do so. None of these actions would be viewed in a positive manner by the court, and may lead a judge to question Rutherford’s sincerity about wanting the children to have a strong relationship with their father.

On the other hand, Rutherford might argue that the children belong in the U.S. because they are citizens and deserve a closer connection to its culture. Giersch can counter, saying that the children are acclimated to Monaco and shouldn’t be forced to move. As the children age, they may get a chance to participate in these decisions, too.

The parties have a custody hearing before the Monaco court system in early September 2015. It remains to be seen if the court in Monaco will uphold the last order from the California court granting Rutherford temporary custody, or instead issue a completely new order.