International Custody in Relation to the Kelly Rutherford Custody Trial

by Obermayer Rebmann Maxwell & Hippel LLP
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International custody has come to the forefront recently with the custody battle raging between United States actress Kelly Rutherford and her ex-husband, German businessman, Daniel Girsch, over the physical custody of their two minor children. When the parties separated in 2009, and subsequently divorced in 2010, they agreed to a 50/50 physical custody schedule. In May 2012, approximately two years after the parties divorced, the children travelled to France with their mother to visit their father. Upon their return to the United States, Ms. Rutherford requested sole custody of the children so they could remain permanently in the United States with her. A California judge denied her request, after a lengthy court trial, and ruled that the parties’ agreed upon 50/50 custody arrangement was in the best interest of the children and should continue. As father had recently had his visa revoked, amidst speculation that Ms. Rutherford may have had a hand in this, the court ruled the children should live with their father in France, subject to Ms. Rutherford’s periods of liberal physical custody. Obviously, this meant that Ms. Rutherford would have to travel extensively in order to see her children. Further, the court ordered the matter reviewed in two years, hoping father’s visa would be reinstated by that time.

In 2014, Monaco, accepted jurisdiction of the custody case and declared the children and father residents of Monaco. As a Pennsylvania attorney, my assumption is that father petitioned the Monaco court to accept jurisdiction of the custody case, as at that time, father and the children had been residing in Monaco for a period in excess of two years. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires only a six month residency period for Monaco to qualify as the children’s “home state.”

In May 2015, upon petition of Ms. Rutherford, a California judge granted her request for sole custody of the children, on a temporary basis, and ordered the return of the children to the United States. Two months later, on July 23, 2015, another order was entered by the California court, whereby, it ruled California no longer had jurisdiction to hear the custody case as Ms. Rutherford no longer resided in California. After filing for custody in New York less than four days later, Ms. Rutherford was informed by the New York courts that it also would not hear her case as New York did not have jurisdiction.

Put in simple terms, 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 could be where the child resided for the past six months preceding the filing of the custody complaint or where the parties and/or the child have “significant connections” in the areas of care, protection, training, and personal relationships. With regard to the Rutherford case, neither California nor New York would qualify as the children’s “home state,” nor would either court find many “significant connections” between the children and New York or California. Since they have lived abroad since 2012, the children’s schools, activities, and friends would be located in Monaco, not the United States. With each passing day that the children continue to reside in Monaco, their connection to that country becomes stronger while their connections to the United States become weaker.

Many legal analysts have used this case to depict a United States citizen’s constitutional right to live in the United States without court interference. They compare the court’s custody order as an act of “exile” for the children. I disagree with this analysis. I believe this is a true jurisdiction case, as well as, a best interest of the child action.

This is not a case where either parent was declared unfit, either by the court or each other. In fact, based upon the testimony provided at trial, it appears both parents are more than capable of providing financial, emotional and physical support for their children. However, as in any custody action, a judge cannot stop the analysis there, but must look at several other factors, in Pennsylvania that includes sixteen separate factors, before fashioning a custody schedule. One of these factors is “which party is more likely to encourage and permit frequent and continuing contact between the child and another party.” This factor may have been Ms. Rutherford’s undoing. The fact that she filed for sole custody of the children, after exercising shared physical custody with Mr. Girsch for two years, may have lead the judge to question her sincerity about wanting the children to have a strong relationship with their father. Additionally, testimony was provided that father only learned of his daughter’s birth (Ms. Rutherford was three months pregnant with the parties’ second child when she filed for divorce) through media reports, and there was testimony that his name was not included on the birth certificate, despite the court ordering such on three separate occasions. Testimony was also provided that father found it difficult to communicate with the children while they were in their Mother’s care and custody, while Mother and the children frequently communicated by Skype when they were in father’s care and custody. None of above actions would be viewed in a positive manner by a custody judge, nor would they be considered actions worthy of “encouraging frequent and continuing contact.” Regardless of the above, I believe the most damning evidence presented in this case, may be Ms. Rutherford’s unilateral decision to refuse sending the children back to their father as court ordered.

The couple will participate in a custody hearing before the Monaco court system in September. What, if any new order will be entered, remains to be seen.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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