How can the U.S.-born young son and daughter of a famous American TV actress and a German businessman possibly end up residing, against their mother’s wishes, in the tiny, shiny principality of Monaco?
While that glamorous locale is no one’s idea of a hardship post, many people find the possibility that Kelly Rutherford’s children will continue to call Monaco home inappropriate and inexplicable. But to international family law experts, that outcome makes perfect sense, and they expect no change in the children’s residence following the latest round of court hearings that begin in Monaco this week.
What’s more, these seasoned lawyers say, this protracted, two-continent fight serves as a cautionary tale about the strict international laws that come into play when parents split, then move. While parents may fancy themselves global citizens, moving with ease from one country to another for work or love, courts want children to have a fixed address, and it’s one that may not take long to establish.
It can require as little as a year, sometimes even just a few months, for children to be considered residents of Monaco for custody purposes, says Charlotte Butruille-Cardew, a Paris- and London-based international family lawyer. Rutherford’s children have lived in Monaco since 2012. And while Rutherford has long wanted an American court to decide her case, a Monaco judge will rule on the dispute, rather than sending it back to the U.S., Butruille-Cardew predicts.
So what will that Monaco court decide? For one thing, it’s likely to deny Rutherford the opportunity to bring her children back to the U.S., at least for the time being. Rutherford’s dramatic decision to keep her children in New York earlier this summer, instead of returning them to Monaco, was viewed as abduction under international law that the U.S. and Monaco both follow. What may have started as an understandable maternal instinct – to keep her children close – devolved into a grave strategic error.
“I would expect a court in Monaco would take precautions that the children remain in Monaco until they can trust that mom won’t violate a court order, so there may be restrictions on her access,” says Laura Dale, a Texas attorney and expert in international child custody and a lawyer for the French Consulate General. (Neither Dale nor Butruille-Cardew are involved in this case.)
Butruille-Cardew agrees. “It’s obvious that the fact that Rutherford abducted the children will not play in her favor.”
If Rutherford wants to challenge her ex’s custody, she has a long battle ahead, one that would involve costly and time-consuming examinations of parents and children by court-approved professionals.
What she might do instead, Butruille-Cardew suggests, is apologize to the court for her past behavior, ask for generous visitation privileges and promise to abide by the court’s rulings if the children are allowed back to the U.S. She could vow, for example, to hand over the children’s passports to her lawyer.
Both lawyers agree that this fraught, globe-spanning custody fight is far more common than you might think.In Texas, Dale says about half of her practice is devoted to international custody disputes, often involving parents who arrive from Europe, Asia, and South America for work in Houston.
Butruille-Cardew offers a hypothetical, but common example: A couple who come from two different European countries and meet in Singapore, where they both work. They have a child together, and one parent wants to return home. But the children are, thanks to international law, residents of Singapore.
“This global generation doesn’t understand that these laws are complex,” she says, and were intended to prevent one parent in an intact, well-established family from abruptly fleeing with a child. When applied in our mobile world, however, “it is found, sometimes, that children have acquired a habitual residence fairly rapidly … in a country where neither parent is a habitual resident. And that creates the type of unfairness you see here.”
Lisa Green is an MSNBC legal analyst and author of “On Your Case: A Comprehensive, Compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman’s Life.”