People Magazine has an overview of Kelly Rutherford’s custody case and while it’s a bit TL;DR it’s interesting for the fact that it sounds straight from Kelly. Their article is biased in favor of Rutherford, of course (we’ve been accused of the opposite), and pretty much outlines her legal strategy. (I’m not going to recap Rutherford’s custody battle because most of you know the story. If you’re not familiar with the case, please read this story or this story for background.)
The last we heard from Rutherford, a California judge had awarded her temporary legal custody of her two children, who are currently in Monaco, where they reside with their father, Daniel Giersch, a German citizen. This occurred after Giersch refused to let Rutherford take the children with her to New York for a scheduled summer visit. Rutherford would have been allowed to take the children if she had agreed to surrender their American passports, as was stipulated in their custody agreement. Giersch’s lawyer argued that Rutherford’s recent statements to the press made the children a risk for kidnap and necessitated this step. It seemed reasonable to me, but obviously Rutherford disagreed and took legal measures.
As for what’s next, Rutherford is legally entitled to take her children, son Hermes, 8, and Helena, 6, back to the US so that they can attend a hearing on June 15. Giersch cannot come to the hearing as he is not allowed to enter to US, but it’s assumed he’ll send a lawyer. It’s possible that he’ll block Rutherford from returning with the children, but that would be held against him in court. Here’s more of People’s report:
It’s a win for the former Gossip Girl star: In 2012,a judge decided that Hermes and Helena would live in Monaco and France with Giersch even though the couple shared joint custody because his visa had been revoked. (Giersch’s team has not commented on the court order.)
Though this new order – which came after Rutherford told PEOPLE that Giersch would not allow her to see the children on a visit last week – means her kids will come home, it shouldn’t necessarily be interpreted as a sign that they’ll stay here.
“It’s a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out,” Nancy Chemtob, a New York family and divorce lawyer not involved in the case, tells PEOPLE.
Still, Dan Abrams – ABC’s legal analyst and Mediaite founder, who has written articles supporting Rutherford’s cause for years – calls the development a “big victory” for the mom.
“Even though its temporary, it seems to demonstrate that the court is upset that its specific orders have either been ignored or dismissed by Daniel,” he tells PEOPLE.
According to the court order, Giersch “is alleged to have committed numerous violations” of the 2012 judgment. Rutherford’s claims that he was not letting her spend time with the children or bring them back to America for visits, along with the fact that he never reapplied for a U.S. visa, are the basis for her application. (A former lawyer on Rutherford’s team was allegedly responsible for the revocation by reporting the German businessman’s allegedly illegal activities to the State Department. She has denied any involvement.)
“She filed a motion saying there’s been a substantial change of circumstances, he’s not complying with the terms of the agreement, he’s making false accusations or obstacles as to why she shouldn’t see the children, so now the judge ruled, ‘Okay, fine, the children are awarded back because there has been a change in circumstances,’ ” Chemtob says. “The judge said, ‘You need to return the children to the court and be here on this date.’ Now, on that date, the other side is going to come I’m sure with evidence refuting everything she said.”
Hermes and Helena do have to be back in the United States by June 15. The California court has asserted jurisdiction over the children, who are U.S. citizens.
Plus, Monaco is a signatory to the Hague Convention, an agreement among more than 90 nations to protect the interests of children and comply with other countries’ legal proceedings.
An attempt by Giersch to keep his kids in Monaco “would be a violation of the court order and the breach of it is hugely severe,” Chemtob says. “The punishment of him not coming back or not complying with the court order in itself could be a reason to transfer custody to her.”
As for the estranged couple’s day in the Los Angeles Superior court, Abrams says the existing parenting arrangement could be altered completely.
“The court will hear both sides as they battle over whether it is in the best of the children to stay in France with Daniel or come back home to the United States to live with Kelly,” he says. “The court will also re-evaluate all aspects of visitation, etc.”
There are many more quotes from People’s legal expert as to how this could play out. She thinks there’s a 50/50 chance that Rutherford could be allowed to keep the children full time in the U.S., however it’s unlikely that a final decision will be made at the hearing on June 15. Rutherford’s good friend, Daniel Abrams, thinks there’s an even better chance that she could regain custody, “The interesting question is what happens if a Monaco court and Daniel refuse to adhere to the California court order. Then, you have American citizen children being kept in a foreign country in direct violation of a United States court’s order.
“I am confident that if that were to happen that State Department would get involved on Kelly’s behalf and that the California court would be even more likely to grant her permanent physical custody.”
I bet that Rutherford is hoping it plays out like this. She’s the one who got her ex kicked out of the country, and she’s the one who said that “whoever brings my kids home is going to be pretty much a hero.” The court found that Giersch didn’t allow Kelly to visit her children “on at least two occasions” since October 2014. So in three years, Giersch has only blocked Kelly from seeing the kids twice, (if it was more than that you know she would have brought it up) and the last time was after he legitimately feared for their safety and asked her to first comply with part of their custody agreement. Throughout all that time, she’s done interviews in which she’s admitted to telling her children that she’s “fighting” for them and in which she’s tried to frame this as a “Constitutional problem” and an issue that affects “American citizens.” Sounds like parental alienation to me, but I’m just watching from the cheap seats.
Header image is from 5-5-15. Colorful dress photo from 4-25-15. Other images from 2014. Credit: FameFlynet
I understand Reese Witherspoon also understands the issues that affect American citizens.
I hate custody battles with a passion but the fact that this one has a ‘Murcia bias thrown in literally makes me want to puke. I feel so bad for those kids.
All I can think about is how those kids are going to feel when they do some googling when they’re older, and see the way this custody dispute played out.
Reese is actually an american citizen y’all! And she knows it!
Like I said Before: I Cannot IMAGINE what these kids hear from their mom and dad about the Other Parent nor how F*CKED UP they grow to be in this constant mess
And Also: Prepare to see those kids at the opening of an envelope all summer dressed in white
If she gives someone else their passports, how does she then bring them to the US? And as someone who was caught in the middle of a custody fight, i’d say you shouldn’t diminish him not letting her see the kids. It’s only one piece of the puzzle, sure. But it’s an important one.
The kids have German passports. They can go to the US assuming Giersch gives the German passports to Rutherford.
I think the U.S. requires that U.S. citizens travel on U.S. passports.
But his recent court filing discussed upping security at their school after her hero interview so I’m pretty sure she was there just to visit, not to take them for the summer. So she didn’t need passports
@audrey: not in their case because they are under 12 and one of the parents is not a US citizen. I posted this info from immiration in a previous thread.
Ah okay. Thanks, Miss M
Umm…no. U.S. citizens are always required to have U.S. passports to enter the U.S. – even if they are dual citizens. See Immigration and Nationality Act section 215.
The custody agreement requires her to turn over the children’s U.S. passports to a neutral third party in the U.S. AFTER the children have entered the U.S. and been examined by Customs and Border Protection. This is presumably so she cannot abscond with the children to a non-Hague, no extradition treaty country in violation of their custody agreement.
@Poppy: is the father also required to turn over their German passports to a neutral third party once the kids are in the EU? Or did the judge single out Rutherford, possibly over concern of her abducting her kids as you describe above?
That’s my point of view, too, despite the accusations I am on her side and I don’t read carefully. LOL My hope is that whoever is the judge now and whoever is involved on the court side will straighten both parents and I emphasize *both* because it’s very clear to me that, thanks to the geographical distance, he has pretty much assumed he has the right to do whatever pleases him and is invincible which I don’t consider healthy in this situation. They both need to be kept on a short leash in the best interest of the kids which, contrary to the opinion here, is not to be away from their mother, either. If he hasn’t re-applied for a US visa indeed, I’d definitely expect this to be held against him and for a good reason and no, what he assumed would be the outcome is not a reason to violate court orders. He leaves me with the impression of an arrogant person and I don’t like that. If he tried to get the passports given to his lawyer, that’s also a violation as his lawyer is not a neutral side. And overall, both parents need a different approach but I don’t consider him a good parent, either. (Canada does require Canadian citizens to travel and especially to enter Canada on their Canadian passports. Same with my native country. If you do not, it’s a violation of the law.)
Mary Alice, if she was in Monaco to visit them, and they are still in school, she had absolutely no reason to bring their U.S. passports with her. Why would the children need their passports if she was coming there to see them? The ONLY reason would be to kidnap them and bring them back to America. Once she had them on U.S. soil, and with their father in Monaco and unable to come here, she could convince the judge to give her primary physical custody since she already has the children with her. That’s why she wants them now before the June 15 court hearing. She can use the fact the children are already here and in her care and control to modify the custody agreement.
Mary Alice, I never knew this. I just thought you had to travel both ways on the same passport.
My husband and I regularly travel to LHR, he (and our children) always travel on our Canadian passports, not on their UK – as I am the only one without dual citizenship. Immigration never says anything to us… they always just welcome him home.
Lucky Charm, I’ve already stated my opinion on this judgement and it’s negative. It gave the father a false sense of invincibility, IMO. I stand by my opinion. As about passports, that’s the law. I haven’t been asked either but in case they find out I have dual citizenship, either on entering Canada or my native country, and I am not traveling on the appropriate passport, I will find myself in trouble. I just don’t feel like risking it.
@Mary Alice: that’s complete BS. Canada does NOT require that you enter the country on your Canadian passport. All you need is a valid passport and proof of Canadian citizenship. That is from direct personal experience as my eldest’s Canadian passport had expired while out of Canada. There was zero problem in re-entering on a EU passport combined with the expired Canadian one and a citizenship card.
I am an American citizen and so is my father and we have frequently travelled to the US with Australian passports. There’s no reason why the kids cant use their foreign passports to enter and leave the US.
@sienna: You don’t even need to travel on the same passport in both directions. If I’m travelling into Canada from my husband’s country (I acquired citizenship), I use my Canadian passport. When I leave to go back to the EU, I travel on my EU passport.
Also, at LHR (I asked the immigration people there this specifically), if your husband and kids are travelling on their UK oassports, you can join them in the “short line” instead of that god awful 3 hours long line they have for everyone else.
Neither one of these dip$h!ts are going to win Parent of the Year, and yes I find People’s articles slanted to Kelly and some of the commentary here slanted toward the Dad. Kelly’s comments about “heros” getting her kids in the country were crazy; however, if what I read on other sites is true, he has done nothing to get a US visa reinstated (yes I know, her lawyers fault to begin with, but still–he was supposed to do that, didn’t do that, and clearly as a measure to keep the kids out of US) and his idea of a neutral party holding the passports was one of his lawyers. So forgive me if I throw a little sympathy toward Kelly not falling for THAT one.
But she’s crazy for how she’s handled this, he’s taken advantage of every opportunity to keep the kids out of the US, and there you have it–one effed up mess for these kids to grow up in.
SMH in disgust
+1
Team children!!
The comments on this case are usually so biased one way or the other that is just insane to read them.
I think both parents seem to be problematic and are acting on their own interests without caring about the effect that this will have on their children.
She doesn’t come across slightly nicely in this story and she might have put her children in danger with her comments…Still, I wonder what drove this women to suddenly act in such a weird way, that she didn’t even want to have her still husband legally fathering her baby (that wouldn’t help her get money from him)? But people have a bag full of stones to throw and are full of answers.
Also, why would the father be interested to talk? He has in fact the comfortable position. The children are in end effect living with him, away from their mom. And it is apparent that he never wanted to discuss the reason why he lost his VISA either, so an interview would open a door to that. If he’s so interested in the well being of his children he could as well have moved to Canada or something (it’s not like he went back home…he just changed to a very far away country).
I take reports on both with a huge grain of salt…It doesn’t seem like any of them is behaving on the best interest of the children…it’s sad.
You can’t just move to Canada like that – you either have to be a Canadian citizen (which he is not) or you have to apply for immigration (which is a long and complicated process and the outcome is never guaranteed). He is a citizen of Germany, which entitles him to live anywhere in the European Union. Why are you stating that Monaco is a very far away country?
Monaco is a tax haven: you pay zero (!) income tax and very low business taxes. That’s why many rich Europeans move there.
And no offense, but you can’t compare living in Monaco with *Canada or something*. The area where Monaco is located is AMAZING.
So the tax-situation, the location and the proximity to Germany makes it pretty clear why he is living there.
My ex-company had its headquarters in Monaco. Interestingly enough all the young colleagues who relocated there for work did not like it because everything is so mega-expensive. When they came back home, they always partied hard because they could not afford going out in Monaco.
My 2 cents. 🙂
@Montrealise
errr…I meant very far away from USA, no?
I see that is really problematic that people don’t understand what is Europe, European union and so on…
Monaco is not European Union, although it is a member of the Schengen area, what will make some bureaucracy a bit easier. But no, moving to Monaco is not the same as moving within any country that belongs to the European Union, being an EU citizen (and even that is not free of bureaucracy!). So I don’t really know if moving to Canada would be a lot more work than moving to Monaco (might be, but I can’t assume it, since Monaco is also not EU anyway…). Definitely is not as easy as just going back to his country, Germany, that he also didn’t do.
@Elisa the I.
I was never in neither of the countries, but from my idea and information on both I would choose Canada to live in a heart beat 🙂 I’m European and while Monaco might be beautiful it is also known to be the place where filthy rich go, so it’s a bit far away from what I would imagine as a welcoming place for me 😉
I think being a tax heaven is the obvious reason why he moved there, but well in the same way that people say Kelly could move, he could also have moved somewhere closer. As I said, both could make it better for their children, IMO.
Hmmmm…Monaco, the South of France…no snow, mild winters vs Germany or Canada both of which have you wrappped up against the cold for months a year. Tough choice 😉
Ugh. This is such a wreck. I feel for the kids. I don’t know much about the father, but he’s at least managed to keep quiet as far as the media circus goes. And if Kelly has so loudly proclaimed her stance from the rooftops and demanded Obama do something about her situation – I can only imagine what she’s saying in front of the kids. Especially when she was threatening to not allow them to return to Monaco.
My question – why did she have their passports? Weren’t they supposed to be handed over to a third party?
Ultimately, I’m not super up to speed on American custody/child rights. I know that in Canada, a kid has the right to have both parents in their life- regardless of how much a mother might hate a father (as long as the parents aren’t a danger to the kid).
I just find this whole thing to be such a farce. I don’t know. I think if I were Kelly, and the kids had been sent to live with their father, I’d have packed up, and done what I could to live as near them as possible. She goes on and on about how she’s so worried about her kids – but think of the sacrifices NORMAL people make for their kids. She could give up acting – she’s not that active or a big name. She could find some sort of business or something to get involved with in Europe – I just don’t see the “I’D DO ANYTHING FOR MY KIDS” being genuine when she has much more means than the average divorced parent who will pick up and move and do whatever they can to be in their kids lives. That’s something that really bothers me about this. Her idea of everything is trying to cut their father out, and just whining to the media and government. I get that you can’t just move on over to Monaco – but I’m sure there’s some kind of nearby European nation in which she could set up a home base of some kind. She doesn’t HAVE to live in America – yes. Her acting career is in the US – but hey, if I had my kids leaving the continent, I think I’d be much more likely to ditch my job and scramble to make ends meet near them, then be that far away.
They never agreed on a neutral third party to hold the passports.
I don’t think he cared too much until her recent interview which sounded like a kidnapping plea
On one of the last Rutherford posts someone suggested that the two should move to a neutral country together with their children, Canada being the one suggested. That sounded smart to me, he’d bypass trying to start the most likely futile process of trying to get a US visa, and she’d still be close to her career base. I’m sure there is some legal issue in there, but I think if both would just work together, they’d find a good solution.
On what basis would he have right of residence in Canada? Most countries don’t just let people move in without considerable wealth or a job offer. Canada operates a points system based on education, skills and wealth but the process can take years
I was under the impression he was wealthy (or from a wealthy family). Possibly he has a decent education. Anyway, it was just a thought, since as I said his chances of getting back into the US are slim to none and Rutherford will likely never even attempt to relocate closer to him. I suspect he is just fine with living in wealthy, beautiful Monaco away from his crazy ex, anyway.
Canada has an “investment class.” He also may speak French, which would make him appealing.
But I’m not sure how much weight canada will place on the U.S. visa being revoked. If he has enough money, it probably wouldn’t matter though.
Not that we want this mess in Canada lol
Canada was also my thought…of course there might be many reasons why it wouldn’t work, but money is not one. That guy is filthy rich (entrepreneur, had huge battle with Google, he’s pretty known…) ! I guess living in Monaco is great for millionaires regarding taxes.
Canadian court WILL consider seriously the US visa revoked and there is no way he would get the 50/50 here. First, because they don’t have a good relationship and their shenanigans are harmful for the kids. Second, because in Canadian court a person with any kind of suspicious past in terms of illegal activities is frown at as a not so good influence. Third, but not last, because in Canada it is extremely unwelcome to move while you have little kids with your ex and it takes moving mountains to even move to another province, not even mentioning taking the kids to a different country. They would both be required to most probably get joint legal + one gets residential BUT stay both in the country and he will be under surveillance but he wouldn’t be able to take any of the liberties he does now. And the kids passports would be surrendered to the judge. This is especially true these days after a couple of cases where the courts overlooked the possibility of child abduction and parents took the kids to another country thus leaving the other parent behind in a state of despair. Some of those cases remain unsolved as Interpol fails to locate the kids. After all this Canadian courts became much stricter when it comes to kids traveling, moving, etc in all cases of parental separation/divorce.
In Canada 50/50 residential custody is an extreme exception (as is shared) and the court grants such custody, and even joint custody, only to parents who have proven they are in a very good relationship and can actively and positively co-parent in the best interest of their children. The statistics on how many such custody cases there are in Canada are widely available on the Ministry of Justice website – very very few. Canadian court recognizes that in cases where the parents have not great relationship, a 50/50 will not only not work very well and will possibly be violated but that the parents will put additional stress on the children through negative talking, acting, etc. In most cases Canadian court grants either joint legal custody + residential to only one parent or sole + generous visitation with a parenting plan defining each specific. And I find Canadian court very wise in the matter.
If the California system works the way the Texas system does, then when you go in for an emergency hearing you get whatever judge is available, not the regular judge who had originally been assigned. If this gets back to the original judge, I expect Kelly’s success will diminish.
On the previous thread it was already explained that after the original judge was transferred to a different department, this judge was assigned to her case. She didn’t just use any judge. Let’s stay objective.
I hadn’t read that she has a new regular judge or that the new regular judge issued the temporary order. Not sure how I’m not being objective. It is a fact that, in the state of Texas, you have better odds of getting a temporary, ex party, emergency order because of the way the system works. Your opponent is not there to respond (ex party), it is given to whatever judge has availability at the time to hear it (emergency), and temporary (standard is lower – must assume truth of statements made by applicant). Kelly’s original judge seemed team dad to me. If she has a new, regular judge then maybe her odds are better.
Well, I hope for her sake that wasn’t her new “regular judge”. Otherwise, she just made that judge look like an uninformed fool in all of the US media, assuming that what the father’s lawyers countered with is true. That’s not going to do her any favours.
I have to stop reading about this case for the sake of my mental health. “Then, you have American citizen children being kept in a foreign country…” – ugh, I can’t even…! What a bunch of ignorant douchecanoes.
Douchecanoe is my new favorite word
I agree! The children have dual nationality and live with their father, Are German citzens being “kept in a foreign country” when she has them in the US?
I agree that the sentence in the way that they want to use it is just…awkward, unfortunate, a bit crazy?
Still, some people seem to not grasp that Europe is a continent not a country…so yes, in reality the children are in a foreign country, since they’re not living in Germany. What is a bit of a question…why there? It’s not like the father has any roots in there anyway.
I’m European, so I grasp that idea very well, thank you. But as German citizens, the children are at the same time the citizens of the European Union and can live and migrate freely within the entirety of the Schengen Zone (including Monaco). The father has a big connection to Monaco – his parents live there, that’s why he took the children there and not to Germany. So in this context – Monaco is not as foreign for a German citizen as let’s say, Mexico, would be for an American. There are no borders, no visas, no boundaries to find a job, home and move the entire family there, so yes – Europe is not a country, but this situation is more like if a Texan moved his family to Oregon (even though the USA is a country and Europe is not, I know that) than the “children are kept in a foreign country” story she tells.
I am European too and I strongly disagree that the EU has literally erased borders. There is still different language, different culture and let’s face it – not each country is “dying” to give a job to a foreigner and many countries have put… more or less obvious barriers to such foreign workers. Yes, we are still speaking of foreigners. The whole fraternity utopia is quickly proving itself as a dream not to come true in the foreseeable future. And Monaco is not EU anyways. Being Schengen Zone is not the same as the legal frame is not necessarily in compliance with the EU laws. And in such cases this is important. I still find the fact that the judge allowed the kids to be taken to a non-EU country (contrary to enforcing their residence to be in Germany) appalling and serving only the father.
@Norman Bates’ Mother
I wasn’t answering to your comment. As I said, I agree with it. I think these are two different points.
I will have however to disagree with the “freely” in there. You can’t migrate freely in the Schengen Zone. Even within the European Union you have a limit of time you can be somewhere if you don’t find a job and so on. This will be more strict when a country “simply” belongs to the Schengen. Bottom line, he’s a millionaire and he can move anywhere without having a job in there, as he did to Monaco. I didn’t understand that he moved there because of his parents, I thought they moved with him (German magazines)…but I might as well be wrong.
I don’t think we can compare this case as moving from Texas to Oregon. The kids moved from USA to Monaco, not from Germany to Monaco…what was easier to do because they have a German passport and the father a lot of money and a job he can do from anywhere. Germany and Monaco are very very different countries (language, culture…), so it’s not that they are moving to their father’s home country, they are simply moving to another country where the father also never lived.
What I mean is that her behaviour didn’t seem to be the best till now (the patriotic talk doesn’t help either), but neither the father’s behaviour. And judging on the same light that we judge her, he also didn’t facilitate for the sake of his children.
As I said I’m team children.
I’m sorry but that case makes me angry. I didn’t write that it’s exactly the same thing but that living in Monaco for a German citizen is closer to moving from Texas to Oregon than from USA to Mexico due to the no visas, no borders, right to migrate laws etc. I studied to be a European Union administrator, I truly believe in the good sides of the EU and I have used my right to migrate within the Schengen Zone that’s why I don’t think it’s so wrong for him to live in Monaco. I read that his parents were already there. As long as he can afford it, he has the right to do so and if he lived in Germany, it wouldn’t change a bit and she would behave in the exact same way, I’m sure of it.
She believes her children are the American citizens who were taken and that American citizenship is more important than any other and that’s the main problem. In fact the American citizens part in that quoted sentence pisses me off the most. She still has yet to acknowledge that her children are half German and most of the people who signed her petition believe her when she says he unlawfully abducted the children. I’m also team children and in the perfect world they would still have two loving parents living close to each other in the USA, but she ruined it with her dirty divorce play and I don’t think him moving to Monaco can be equaled with all the bad things she said and made (on top of it – encouraging perverts to abduct her children). They can’t live alone, need to have a home somewhere and after comparing their parents’ behavior, he still looks like a much more stable one.
Someone commented on a different site that Monaco and France do not recognize ex parte rulings so she likely won’t get a mirror ruling to recognize the Calif decision. Their courts also apparently close for the summer for civil things like custody?
She said she was in a similar situation and she’s sure the court over there will reject the ex parte ruling as hers was years ago.
Not sure if this is true but an interesting view. Maybe a foreign CBer can confirm or dispute?
It doesn’t matter what Monacco does in regards to ex parte. California has jurisdiction over this custody case. Monacco has no jurisdiction over Kelly. The father availed himself to California jurisdiction by divorcing and establishing custody through its Courts. The Court order states that Cali retains jurisdiction. Since Monacco is a member of the Hague they are supposed to defer to California.
I don’t think it’s that cut and dry.
Only one thing is certain about this case: These two will be in and out of court until each of these children turn 18.
Reading through the court order that granted Daniel to move to Monaco provides a lot of clarity. It confirms that Mr Rich (former attorney of Rutherford) was responsible for getting Daniel’s visa revoked with untrue allegations & as a result it took the kids away from their father. I’ve seen nothing from his camp bad mouthing Kelly except for refusals to engage in the media farce.
I posted a copy of the court order on the other thread and nowhere does it state that Kelly’s former attorney submitted false information about Daniel to the State Department or immigration officials. The assumption is that Mr. Rich lied which has not been established.
I posted a quote from People magazine on the other thread (with information on how to search for it) in which the relevant court order mentions that Kelly’s former lawyer was involved in getting Daniel’s visa revoked.
The court order you mentioned was probably not the relevant one that dealt directly with this subject – not every court document would.
you actually posted this, so please read it. especially page 17 where it clearly states her attorney ratted him out to immigration in an attempt to forever alienate him from the children. she refused to put his name on the birth certificate? explain that to your kid, you selfish c… she has no job, no significant other, no money, no home and she wants the children who live a stable wealthy life style to come back to what? so she can parade them all over the press and flash victory signs in the name of America? CTFO
http://images.eonline.com/static/news/pdf/RutherfordRuling.pdf
@ stormcloud – Thank you for the link and identifying where to find the Court/judge makes note of what Kelly’s then-lawyer, Mr. Rich did regarding Daniel’s visa and the immigration authorities.
(According to my pdf reader, it’s on page 18.)
……………
@ Queen B – Since I’ve seen so many posts questioning what was said or wasn’t said about Mr. Rich, I’ll post an excerpt of what was said & found by the Court/judge:
“At this juncture, there probably is no one in this room who would not turn back the clock to the day before Mr. Rich entered this courtroom in this case. In doing what he did, including his contacting of the immigration authorities and proffering the waiver form to Daniel, he did more damage to not only Daniel but also to Kelly if not more so to her; but most importantly, he immediately took away one parent’s ability to be with his children.
The Court has said before that trials can lead to the unexpected and I believe I said so in this case when we were pondering the fine-tuning of the then existing parenting plan early on in the trial. But I must say that the Court never imagined that anything like what Mr. Rich did would occur in this or any other case.
The Court will not recount any more of those events because the Court finds and adopts herein the description of those events found in Daniel’s written closing argument.”
……………..
The Court goes on to say the France Plan was chosen because there’s clear and convincing evidence that it’s Daniel who has been shown willing to cooperate with Kelly in co-parenting whereas “Kelly simply has not done so.”
http://www.harris-ginsberg.com/docs/Statement-of-Decision.pdf
Here for the FULL transcript, the others posted had been edited. They make it clear that not only did her lawyer call immigration and do so while sitting in the courtroom, he also tried to get the father to sign a “non-visitation” agreement in exchange for “making his visa problems go away”. Page 22 and on, they also list the many occasions and instances where she tried to obstruct his parenting time, and/or terminate it entirely.
It’s quite the read.
Thanks Alice. That was fascinating and terrifying. My husband had a somewhat similar custody case where he thought joint was best for his son but his ex pushed for sole for herself. Every evaluator stated joint was recommended but if sole was granted it should go to my husband. This was years ago and he was advised to stick with joint and they were able to avoid trial. I had always wondered how many headaches we could have avoided if he had gone for sole custody. But reading this it seems to me there are always going to be people who think nothing of their children and just push to win. Had my husband been granted sole custody I suspect his ex would have dragged him to court even more frequently than she has with joint and it’s going on 8 years of nonsense now. I agree with one of the other commenters here who pointed out this legal battle will obviously continue until Helena is 18. Kelly just loves exercising her right to file any kind of nonsense she thinks will make her win. How exhausting for all of them.
@ Alice
Wow. That’s a great link! Thank you. So much more detail and very interesting ones too.
The Court’s findings about the crazy stuff Kelly has done is quite something. From her side’s accusations against him of homicidal tendencies and drugs and arms dealing and telling the State Dept that he’s trying to kidnap the kids and to come arrest him now, to trying to get the son to call the police on his father, to the son, while in Kelly’s custody, somehow thinking his father is a criminal, to trying to block the minor’s counsels from the son’s teachers/therapists/tutor, to failing to sign any affidavit to help get Daniel’s Visa back, etc.
Also, it details how Kelly was in the presence of her then-lawyer while he was offering up a ‘deal’ with Daniel to either sign a document to give up visitations with the kids until further court order or be reported to the State Department (and it describes his contact with them in more detail), with Kelly at first saying she knew of this document beforehand, then saying she didn’t.
Then she kept this lawyer while firing her other lawyer. Hmm…
Also, it lists examples of how when Kelly does make proposals for Daniel to be allowed to visit the kids, it’s in the US when she knows his visa was revoked. So she’s making impossible deals.
The Court also listed numerous times when Kelly’s statements were untrue and/or contradicting her prior statements.
And your link provides so much more details of other things she’s done and what’s been happening in this case.
Just really…. if I were Daniel, I’d be scared….
On the other hand, it describes Daniel’s efforts to involve Kelly in the kids’ lives when they’re with him.
wow thanks @Alice
just when you thought should could not possibly be any more vindictive, selfish and insane you come upon new information. I’m sorry for the kids, but she should not be around them without a monitor as clearly her mission is solely to “win” at all costs. ugh. it makes me sick.
wow for a person who fights so much she sure does love to put up peace signs in all of her pictures
I think they are Victory signs-as in she is projecting her anticipated victory.
Are you there, God, it’s me Becks…please don’t let this woman trample all over the father’s rights.
How would she have time to be a parent and do her acting job when (based on most of the photos that are posted) all she seems to do is go to parties, photo ops and promotional events?
Besides, she is broke…Is she expecting the father to pay for an expensive life style (TO her) to the children?It seems that’s what she is trying to do…Get sole custody of the kids to not only alienate the father, but also get money from him…
I accidentally read this in Tina Swithin’s Huffington Post article about the topic: ” I think it’s safe to say that Americans will be on pins and needles awaiting the return of these two American children, Hermes and Helena.”
What? Sure, there are Americans who think like that, but “safe to say” and all of them ????
Definately, apparently kelly took no monetry settlement when she divorced the father. This win would kill 2 birds with one stone for Kelly. She retains the bulk of the custody, the father is allowed to see them maybe a few times a year in monaco if he is lucky, and whats more he will have to start paying her child support. She finally starts getting the dollars rolling in.
Now imagine the tricks kelly will pull when it comes time to send the kids back for their once a year trip to stay with the father. There will be all sorts of accusations. I wouldn’t be suprised if we hear that oldie but a goodie – Helena’s father has been sexually abusing her. She might be saving this clanger for later.
The moral of this divorce story is: “Don’t have children with anyone who is not a citizen of your home country.”
Can you imagine going through having your kids taken to another country and you can’t see them again until the summer or perhaps not at all. That would be my worst nightmare.
The majority of international move away cases I have read involve people wanting to leave the United States to return to their home country in which they have family and financial support or to follow a new spouse. There are also people who came here on student or temporary work visas who fall in love, have a baby and then have to leave before their visa expires.
If someone moves to a location to be with their spouse, it seems logical they would want to go back if the relationship does not work out. Daniel’s case is unique in the sense that his visa was revoked but I understand why he would prefer to live in Europe close to his family who provides generous financial support as opposed to the US where that support maybe lacking.
Kelly never imagined she would lose residential custody considering she and Daniel chose to raise their family in the US and not Europe and because they did not spend considerable time in either Germany or France.
I think the moral of this story is “Don’t try to have your foreign born ex deported when he’s quite willing to stay in the US and live in the same city as you”.
I know Kelly’s former attorney reported Daniel to the state department but I take issue with the fact that people assume the attorney’s report was based on false information.
I do not know if Daniel has committed any wrongdoing but if there is evidence that he has, I do not see why the attorney should not bring that information to the authorities.
Perhaps Daniel chose not to fight the visa revocation rather than address the allegations in detail to avoid any further inquiry into his buisness dealings which could involve criminal activity.
If Daniel had committed some fraud, the children should not hold their father’s lost visa against the mother.
When the judge addressed instances where Kelly has not promoted the relationship, the visa issue was not mentioned as Kelly has a right to communicate with any government agency.
People keep bringing up the fact that Kelly did not put the father’s name on the birth certificate five years ago while the father is currently violating court orders by seeking Monaco jurisdiction when he knows the CA court insisted on mirror orders and retaining jurisdiction as a condition of the move away which he ignores per judge Juhas.
It will be interesting to see if he transfers custody to Kelly by June 15th because his failure will give Kelly permanent sole custody.
In regards to Kelly’s ability to support her children, she has had a few small projects and the court can always award her child support to maintain the same standard of living.
Kelly’s supporters mention the U.S. Citizenship because the children had no connection to Monaco before 2012 as they were born and raised in the U.S. and attended school in New York . Now after three years, people suggest not to uproot them which was Kelly’s argument which the court ignored. The judge felt the children could easily adjust to a new environment and so a return to the states should not be a problem now.
I asked in the earlier post, but never got a response: Would Kelly having filed in New York and not CA last summer not have also been an attempt at changing jurisdiction? I’m also curious as to where the information has come from that he’s been trying to get Monaco to take jurisdiction. There are a number of people here who have stated that, yet no one has offered anything to back it up.
The ex parte order issued by judge Juhas on May 22 included a finding that Daniel is apparently trying to change jurisdiction to Monaco. Kelly’s legal team produced sufficient evidence to convince the judge to order the immediate return of the children.
Regarding Kelly’s federal petition, the United States has a two tier legal system involving state and federal courts. A state court cannot violate a person’s rights under the U.S. Constitution. We know of cases where a federal court has declared a state law unconstitutional such as state bans on gay marriage .
Kelly’s legal argument was that judge Beaudet’s order was a de facto deportation which is invalid because the federal government has exclusive jurisdiction over deportation proceedings and immigration. It is a novel argument but the federal court in New York was not convinced.
Therefore, I make a distinction between the federal petition and Monaco trying to take jurisdiction. The federal case did not attempt to relitigate a state custody order based on best interest of the child or which parent is better but focused on the children’s rights under the federal constitution to live in their country of origin.
@ Alice
Regarding Kelly trying to change the jurisdiction from CA to NY, this is what happened during the hearing on 8/28/12″
“”Kelly suggest in her written closing argument that her request to relocate to New York is really moot because the children have been living in New York for 5 years. If that were so, then Kelly would have falsified her response when she filed it in Los Angeles, California in December of 2008. Additionally, this issue already has been ruled upon by this Court when Kelly filed her recent challenge to the jurisdiction of this Court to continue to try this case.”
It looks to me as Kelly was saying one thing, then another, which contradicted with what she said previously and the judge realized that…
As for any future change in jurisdiction, I don’t know for sure, but then again, she tried to bring this to the Federal jurisdiction and away from the State’s jurisdiction.
@Queen B
I cannot, just simply cannot understand why you constantly try to defend KR’s action but throw shade on the father. the facts are just that:
she played dirty from day one, trying to alienate the children from him most significantly giving it her best effort to have him deported so he could not see or be with his kids regularly. your argument of him having some dirt on his hands simply does not hold up at all, A) because after 9/11 even the slightest accusation was taken to the extreme and she knew that, and B) who does that to the father of your children? seriously? who does that?
as for the birth certificate issues: the daughter deserves to have her father’s name on her birth certificate. it’s not KR’s birth certificate. it’s the kid’s. imagine how Helena would have felt about finding out her brother having his father’s name on the birth certificate but not mommy didn’t want it on her’s . she is simply delusional. this is just cruel towards the children and selfish on her behalf since children deserve to have two parents in their lives. she has also stated in interviews that she has been the sole supporter of the children’s needs in the past. does she actually believe any of that caca she spews or does it just flow out like verbal diarrhea with no Pepto onhand.
funny enough his quote on quote illegal activities never bothered her and she lived comfortably off his money and (travels on his dime) until the custody war started.
she took a nice chunk of the money arising out of his business dealings as a divorce settlement.
as for his supposed filing in Monaco’s court. How many courts has she tried to weasel her way through in her desperate attempts. Federal court? really? like they have nothing else to do? the kids have resided with the more stable parent in Monaco for several years now. you don’t think they are grounded at this age and have indispensable friend and bonds with their father and grand parents. like it or not. they are habitual residents of Monaco after so many years because they simply live and have lived there! for her to even attempt to disrupt their routine and drag them back here is unspeakably despicable. and maybe just maybe, the father has not applied for another visa because he has carved out a life amidst all this chaos that is working out for him and the kids and he doesn’t want to uproot them again. with everything they have been through, can you imagine continuing on with this tug of war. I bet you they are constantly feeling bad about loving both parents when they don’t understand anymore whose side they are supposed to be on. but don’t worry, Kelly, they’ll turn out just fine, just like Ireland Baldwin, just wait. and then she’ll blame it all on dad.
Apparently to get residence in Monaco (which he has) he needed to provide his criminal records from the previous 5 years. Which would indicate to me that despite the allegations by her lawyer to US immigration, his file was clean.
@ Queen B
“When the judge addressed instances where Kelly has not promoted the relationship, the visa issue was not mentioned as Kelly has a right to communicate with any government agency.”
I put an excerpt in a previous comment to you (on this page) that showed that the judge chose the France Plan over the New York Plan since the visa issue prevented “one parent’s ability to be with his children” and because Kelly was deemed to be less willing to facilitate co-parenting with Daniel than vice versa.
So yes, the judge did mention the visa issue.
I don’t know what court document you read, but read the one that stormcloud has linked to.
…………………..
“People keep bringing up the fact that Kelly did not put the father’s name on the birth certificate five years ago while the father is currently violating court orders by seeking Monaco jurisdiction when he knows the CA court insisted on mirror orders and retaining jurisdiction as a condition of the move away which he ignores per judge Juhas.
It will be interesting to see if he transfers custody to Kelly by June 15th because his failure will give Kelly permanent sole custody.”
Apparently there is already a Monaco jurisdiction and the current CA family court judge has acknowledged that and will confer with the Monaco judge on June 11th.
And according to TMZ, Kelly’s side had left this bit of info out of her Friday hearing, which was apparently why that particular judge’s order was overturned…. because he was not given all the info by Kelly’s side regarding dual jurisdiction…
So there is not custody transfer ordered by any court at this moment. Thus, currently, Daniel would not need to turn over the kids by June 15th.
…………………….
“Kelly’s supporters mention the U.S. Citizenship because the children had no connection to Monaco before 2012 as they were born and raised in the U.S. and attended school in New York ”
I’ve seen multiple comments in different Celebitchy articles regarding this case, correcting Kelly’s supporters about the children’s DUAL citizenship and how their EU citizenship allows them to be in Monaco because it’s part of the EU.
Citizenship is irrelevant. The kids had a connection to both parents, one of whom was put in the position of not being able to remain in the US by the lawyer of the other parent.
I just had a look at the court documents from 2012 and i saw the minor’s counsel is the same person involved in Ariel Winter’s case (I read way too many court documents obviously). He acted as her independent counsel as well. What a fascinating job he must have!
The news now is that another family court judge has halted the recent court order (by another judge) to have the kids flown in and have Kelly given primary custody.
So the kids will stay with their father in Monaco for now.
The CA and Monaco judges will confer on June 11th.
The CA jurisdiction might be moved because Kelly moved to NY and Daniel is in Monaco.
TMZ says:
“But now another judge just ruled that the judge who granted Rutherford custody may have been unaware that Monaco has jurisdiction in the case.
Giersch’s attorneys argued that Rutherford’s legal team tried to pull a fast one by filing for custody in California on the Friday before the Memorial Day holiday … when they knew Monaco already had the authority to rule.”
You have to wonder if she thinks back to the day that she okayed the decision to have her lawyer call immigration and wishes she could have a “do over”.
@ Alice
Considering what I read in your link, it doesn’t seem like she’s the type to simmer down in this case.
Agreed Anne000. According to that custody ruling there’s been more lies and backpeddling than honest self reflection. It seems to me the only vaguely reflective concessions she’s made have been under direct orders from the court. And even then she’s often reneged later. People really need to read that before they start throwing their support behind Kelly. Especially if they’re claiming to be concerned for the children.
The supervising family law judge’s decision to stay the children’s return to the U.S. pending a conference call with the judge in Monaco is an interesting development. I still have hope Kelly will regain residential custody but everything comes down to which country has jurisdiction.
There are several sections in the judgment indicating that the children’s habitual residence is the U.S. for The Hague convention and that no other court could modify the orders and both parties submitted themselves to CA courts. Steps were obviously taken to ensure CA would maintain control.
So how can Monaco assume jurisdiction unless CA releases jurisdiction or both sides agree to submit the case in Monaco. The moveaway order was intended to be temporary. I understand that neither party resides in CA but Kelly should not be forced to litigate in a foreign country when Daniel agreed to US jurisdiction.
I wonder if Daniel’s plan was to get the move away, change jurisdiction and deprive Kelly of her parental rights. There is no guarantee Kelly will receive a fair hearing in Monaco while we know that CA has gone above and beyond to accommodate Daniel notwithstanding his revocation.
I typed upthread about who has jurisdiction and it appears that either Monaco does or it’s both CA and Monaco.
Either way, both judges in both countries will confer on June 11th.
I find it interesting that she and her lawyers knew that Monaco has had jurisdiction since last October, yet they neglected to mention that to the judge during the ex parte hearing. Does she have the world’s most incompetent lawyers?
@Queen B
keep rootin” but they ain’t neva coming back, gurl! all your wannabe lawyer legal mumbojumbo adds up to a big fat 0! they are not American. they have dual citizenship and have lived in Europe for three years. neither parent resides in Cali. why would a cali court have jurisdiction? pfft. get a cocktail and cry yourself a river or call Kelly and tell her to pack her bags ’cause she is done. once again, due to her own stupid doing.
@queen B
are you getting paid by Kelly to type this nonsense? because that’s what it sounds like.
your comments are shallow, uninformed and plain stupid just like the BS her camp puts out.
wow she is really pissing off judges left and right.
did she ever love this guy? she chose to marry and have children with him for some reason.
idk all the ins and outs but it seems like she wants something which is not what the court decided originally.
seems pretty harsh when a court decision places primary custody with the father, like she’s not the most fit for the task. why did they decide in his favor to begin with?
sounds like sour grapes on her part and she definitely is coming across as unstable, vengeful, etc. certainly not like a parent that is willing to compromise for the best interests of her children.