The custody case involving Kelly Rutherford’s children, 8-year-old Hermes and 6-year-old Helena has left many baffled, wondering why these children, who are U.S. citizens, would be ordered to live in Monaco with Kelly’s ex-husband, Daniel Giersch. Now a top New York family attorney will explain!
Kelly Rutherford, 46, is fighting tooth and nail for primary custody of her two children, Hermes, 8, and Helena, 6, and it’s getting even more complicated. Judge Ellen Gesmer of the New York Supreme Court upheld an existing court order, Aug. 11, that the children be sent 3,993 miles back to Monaco to live with their father, German businessman, Daniel Giersch. But the question many people have is why would Kelly, a loving and seemingly doting mother, lose the rights to have permanent custody of her kids and instead have them sent to live with her ex-husband, whose own U.S. work visa was revoked in 2012. New York based family attorney, Malcolm Taub, partner at Davidoff, Hutcher & Citron LLP tries to explain this complicated situation to HollywoodLife.com and suggests what he thinks Kelly should do next.
The children had just spent six weeks with Kelly but much to her dismay, it was only temporary. Kelly, who appeared in court without her two children even though Judge Gesmer had ordered them to all be present, was told to immediately return the kids to their dad. They were forced to say goodbye in the New York City courthouse before leaving with Daniel’s mother. “She is a very well respected and very thorough judge,” Malcolm tells us. “And while things may not make sense on the surface the underlying issue, which a judge like Gesmer would consider, is what is in the best interests of the children. Usually that is done after very significant forensic and factual inquiry. It would appear even starting years ago, that there was a determination that it was better for the kids to be in Monaco with the father than in New York with their mother. I would believe that Judge Gesmer is merely facilitating what she believes is in the best interest of these children.”
But what does in the best interest of the children actually mean? According to Malcolm, who does not represent Kelly but has represented many individuals in custody battles over his career, tells us that it comes down to the “mental stability of each of the parents.” “The reality is of course what is the relative mental stability of each of the parents. What ability does the parent have to provide a consistent home environment. Does one parent attempt to alienate a child from the other parent? Where will the child receive the best education? And most importantly, a loving and caring, consistent environment.”
It all started in 2012 when a California judge ordered the children to “temporarily” be sent to live with their father during the year and their mother during the summers since his US work visa had been revoked. But ever since this “temporary” order had been issued, Kelly has been fighting it. Just recently, both the California and New York court system said they had no jurisdiction over this case which left Kelly perplexed and angered over why Judge Gesmer would order the children to be sent back to Monaco. Especially given the children and Kelly are not citizens of Monaco and neither is Daniel.
ABC News’ media analyst and founder of Mediaite, Dan Abrams, has been very vocal concerning Kelly’s case and has appeared with her several times on TV. “Kelly announces that since she can not get any court to enforce the terms of the California ruling, she isn’t sending the kids back and suddenly another New York judge determines that it actually does have jurisdiction to send Kelly’s kids back to Monaco?” he told People Magazine. “So that she can abide by the terms of a Monaco ruling? How is it possible that no U.S. court can enforce the specific terms and requirements of a U.S. ruling but a U.S. court can enforce the terms of one from Monaco? I really don’t get it.”
So what can Kelly do next? She has a hearing scheduled in Monaco for Sept. 3 and Malcolm tells us she should definitely go there immediately and hire a local attorney to try and overturn this ruling there. She could also go to the New York State Appellate Division and the Court of Appeals to override Judge Gesmer.
HollywoodLifers, do you think this ruling is unfair?
— Chloe Melas