For the last three years, Actress Kelly Rutherford has been locked in a high profile child custody dispute with her ex-husband Daniel Geirsch over their two children, Hermes and Helena. When Rutherford and Geirsch divorced, they settled on a temporary joint custody agreement. However, soon after their divorce Geirsch had his US visa revoked. Rutherford asked the court for sole custody of the children, since her ex-husband was unable to enter the country, but a California judge ordered the children be sent to Europe to live with their father, stating that Rutherford could travel to visit the children while their father could not.
International child custody disputes are among the most complicated and difficult battles that families and family law attorneys can face. Unfortunately, these types of cases are on the rise as a consequence of a more mobile and global society. The Rutherford/Geirsch case gives a glimpse into the complex issues that entangle global custody battles.
Which court and in which country should the case be heard?
- California – The state that originally issued the ruling to send the children to Monaco with their father. The California court has stated that they now lack authority to deal with case further.
- New York – The state where Rutherford resides and where Rutherford tried, unsuccessfully, to have her case heard.
- Monaco – The country where Geirsch resides and the children have resided a majority of the time. The US is pointing to Monaco as the proper location for the custody fight- a hearing is currently set for September 2015.
What if parents don’t play by the rules?
In May 2015, a California judge gave Rutherford sole custody of the children. After three years of living in Monaco with their father, the children returned to the United States. However, in July of that same year a California judge relinquished his court’s jurisdiction over the case and abandoned the earlier ruling which gave Rutherford sole custody. The judge stated that since Rutherford was residing in New York, the state of California no longer had enough of a connection to the case to maintain continued oversight.
Rutherford refused to send the children back to their father in Monaco. Geirsch’s lawyer filed an emergency request in New York for the children to be returned to him. In accordance with the Hague Convention, a New York judge granted Giersch’s writ of habeas corpus and ordered Rutherford to produce the children in court.
Which parent will prevail?
The court will examine a host of factors that put the children’s best interest first.
- The child’s best interests
- The age and sex of the children
- Mental/physical health of each parent
- Whether religion/cultural issues exist
- Stability of the home environment
- Adjustment to school/community
- Substantiation of abuse/neglect allegations
Monaco may apply its own custody laws to the case and the decision-making process could include testimony from a variety of experts on immigration, attachment, and schooling. Rutherford may argue the children need to foster their connection to the United States since they are US citizens. Geirsch could counter with the argument that the children are acclimated to Monaco and shouldn’t be forced to move.
If Monaco laws allow, as the children get older they may have a chance to participate in custody decisions. The court may punish Rutherford for trying to withhold the children from their father and interfering with his ability to have a relationship with his children while they were under her care in the US.
Geirsch has asked Monaco courts for sole custody of the children. Rutherford is asking the court to uphold the 2012 joint custody agreement the couple established during their divorce. Rutherford states she is not against co-parenting but would like for it to be done on US soil. Monaco is set to hear the case beginning September 2015.
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Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
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