Some divorces are easy. Some are ugly. Many are expensive. And occasionally, they’re just insanely complicated.
We are definitely seeing complications play out with the two young children who are caught up in the trials and tribulations of Kelly Rutherford.
Rutherford, who played a major character on the TV series Gossip Girl, may be more famous today for the real-life custody battle she is waging—across three jurisdictions in two countries—with her German-born ex-husband, Daniel Giersch.
To recap: The former couple has 2 children, ages 8 and 6. Rutherford and Giersch married in 2006, separated in 2008, and divorced in 2010. Litigation concerning custody of those children has been an issue ever since. Giersch, who is not a U.S. citizen or lawful permanent resident, alleges that work visa and immigration problems continue to bar him from living in the United States. Back in 2012, the California divorce court granted 50-50 custody but ruled the children would live abroad with Giersch in Monaco while he sorted out his immigration issues. Those immigration issues, whether truly a problem or just a convenient excuse, remain unresolved today.
Now, years later, California and New York say any further custody litigation should occur in Monaco. This ruling came after Rutherford attempted to retain the children in the United States after their recent summer visit rather than return them to Monaco as required by court order and party agreement.
During several years of ongoing litigation, Rutherford appears to have made one misstep after another, each of which has turned her into a textbook cautionary tale for divorce lawyers and litigants. Her saga, which includes a major jurisdictional snafu, reneged agreements, violated court orders, angry and public screeds against judges, and a misspent fortune, has achieved no resolution.
Why doesn’t mom have custody?
Aside from the twists and turns of the case itself, one of the biggest points of contention involves the underlying assumption that Rutherford should have custody as a fundamental right. Although family law in the United States has moved toward increased time for fathers, many people still assume that equal time for dad means something is wrong with mom. Or, alternately, that something is wrong with the U.S. justice system. Another subtext of the larger media narrative is a somewhat xenophobic American view that life is better here than anywhere: why would we require kids to live on the French Riviera when they could live in Hollywood?
How did California get—and then lose—jurisdiction?
From a lawyer’s perspective, the loss of jurisdiction is perhaps the case’s most interesting complication. Every U.S. state has a uniform set of laws to resolve disputes between parents about where custody litigation should take place. Should the parties negotiate terms in California or New York? In Illinois or the United Kingdom? U.S. lawyers and judges (except those in Massachusetts) look to the Uniform Child Custody Jurisdiction and Enforcement Act, the UCCJEA, to procedurally determine which court should decide the merits of a custody dispute.
But here’s the thing: Back in 2012, when California made its initial child custody determinations, the UCCJEA dictated that California would have exclusive jurisdiction to modify custody orders regardless of the child’s location. In other words, it didn’t matter if the children had to spend the next 3 years in Monaco; the case was still a California custody case. And it was—until, that is, Rutherford moved from California to New York. At that point, California lost its continuing exclusive jurisdiction, and Monaco filled the jurisdictional void as the children’s “home state.”
So why did she move?
Moving to New York was clearly a major tactical blunder by Rutherford, but consider her circumstances: the initial California order basically required her to live on the East Coast if she was to see her children—residing in Europe—regularly.
Furthermore, while press outlets vary in their reports of what Rutherford has spent during years of litigation, there appears to be no dispute that it has been well north of $1 million and perhaps more than $2 million. She has spent so much that, despite once earning nearly $500,000 per episode of Gossip Girl, she filed for bankruptcy in 2013 and was forced to sell her California home. At that point, she had but one residence of her own: an apartment in New York.
The bottom line
Cost is one of the single largest complications every potential family law litigant must consider. A divorce attorney can counsel a client on how much to spend fighting over an asset, like a house or investment portfolio. That same attorney cannot, with the same clarity, counsel a client on when it is time to stop fighting about custody. Those decisions are emotional, not practical, and the kids remain caught in the middle. In that situation, all a representing attorney can do is work to keep the client focused on making decisions that are best for the children involved.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
Image courtesy of the New York Daily News