The nightmare that is Kelly Rutherford’s international custody battle

Updated

Actress Kelly Rutherford starred as glam-mom Lily van der Woodson on “Gossip Girl,” a delightfully guilty pleasure of a television drama. Lily swanned around Manhattan’s high-end zip codes, unaffected by the roiling, soapy family crises that were the show’s stock-in-trade.

But Rutherford’s recent star turn in a high-profile, protracted child custody dispute has filled television screens with a different image: that of a suffering mother grimly departing a downtown courthouse following another setback in her bid to persuade a judge to return her two young children, Hermes and Helena, from their father, Daniel Geirsch, in Monaco.

The actress has every right to look grim: International child custody disputes are among the most complicated, excruciatingly difficult battles parents and family lawyers can face. 

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These disputes are a consequence of a more mobile, global era, and their numbers are on the rise. “We’re seeing more and more international custody fights,” says James McLaren, president of the American Academy of Matrimonial Lawyers, who practices at McLaren & Lee in Columbia, South Carolina. “And people who don’t have significant means have no ability to fight them out.”

The Rutherford battle offers a glimpse into the complex issues at stake in a global custody war where at least one parent can afford to pursue a resolution in court.

1. Which court, in which country, should even take the case?

In the Rutherford-Geirsch matter, at least three jurisdictions have weighed in: 

  • California, which originally issued a ruling that sent the children to their dad in Monaco, and, earlier this year, awarded Rutherford temporary custody, has decided it lacks the authority to deal with this case anymore;
  • New York, where Rutherford tried, unsuccessfully, to have her case heard; and 
  • Monaco, where the couple is set to appear for a custody hearing next month.

Rutherford’s decision to move from California to New York seems, in retrospect, a tactical error, says McLaren. Under U.S. child custody law, a California court could be expected to opt out once the family left the state. And clearly the New York judge didn’t see enough state ties to the case to pick it up. These cases “open a lot of options of where you can litigate, and if you trip, you can be out of the game,” he says.

2. What if parents don’t play by the rules?

Rutherford made international headlines in early August when she decided not to return the children to their dad. She’s hardly alone: In 2013, according to State Department data, U.S. courts heard 364 international parental abduction cases about children taken from home and brought to the U.S. 

When one parent moves children or refuses to send them back, more than 100 countries (including the U.S. and Monaco) follow the protocols of the Hague Child Abduction treaty, which generally encourages the speedy return of children. That treaty is probably what persuaded a New York judge to order Rutherford to return the children to Monaco.

“These treaties are meant to help avoid multiple courts ruling on the same matter, and to prevent parents from forum shopping,” which is how lawyers describe looking for a judge most likely to decide in that parent’s favor, says Melissa Kucinski, a family lawyer and mediator in Washington, D.C. with experience in Hague cases.

3. Which parent will prevail?

Assuming that Monaco is the setting for an eventual decision on custody, how might a judge there rule on this long-running fight? This, of course, is the dramatic heart of the matter and may be the most complicated question yet.

The court will likely examine a host of factors, aiming for a result that puts children first. While Monaco would apply its own custody law to the case, its decision-making could include hearing from a parade of experts: immigration experts, experts on attachment, and on schools.

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Here is where 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. And as the children age, they may get a chance to participate in these decisions, if Monaco laws allow.

In general, “the longer the amount of time [they live in one place], the more likely the child will object to returning” from a home country, says Kucinski. “And the older the child, the more likely his or her views will be solicited.”

As years pass, and courts take their time to rule, a parent left behind, like Rutherford, can stand at a legal disadvantage, according to James McLaren. This dispute, in its sixth year and likely to drag on, stands as an object lesson in the high cost of heading to court. Says McLaren: “I always tell people: Think long and hard before a custody fight. You don’t know what’s going to happen. I’ve never met a happy litigant – and that’s true even when they win.”

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.”

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The nightmare that is Kelly Rutherford's international custody battle

Updated