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Does Kelly Rutherford Have Custody of Her Kids or Not?

By Christopher Coble, Esq. on June 01, 2015 | Last updated on March 21, 2019

Custody battles are nasty. One judge ordered Kelly Rutherford's children to live in Monaco with their dad. Another judge ruled that Rutherford could bring the children back to the United States. Then, yet another judge halts the temporary custody order. What's going on?

Does Kelly Rutherford have custody of her kids or not?

The Custody Battle

In 2007, Kelly Rutherford married Daniel Giersch. By 2009, the couple had one son and another child on the way. Rutherford filed for divorce.

The ensuing divorce and custody battle was filled with more drama than a whole season of Gossip Girl. Giersch accused Rutherford of hiding their daughter's birth from him. Rutherford filed for a restraining order against Giersch and tried to keep him from leaving the country with their son.

The couple was originally ordered to share custody. However, three years ago, Giersch's work visa was revoked by the U.S. Government for some illicit activities. Since Giersch could no longer enter United States to exercise his custody rights, a judge ordered the children to live with Giersch in Monaco. Rutherford would have to fly to Monaco to visit them.

Since then, Rutherford has battled to bring the children back to the United States.

Children Sent to Foreign Countries?

According to Rutherford's attorney, Wendy Murphy, "There has never been a case of a family court judge issuing an order commanding American citizen children to live in a foreign country."

While parents can consent to move children to other states or countries, it is odd for a judge to order children moved to another country against one parent's wishes.

Temporary Order

Recently, a California judge issued a temporary order giving Rutherford full custody of the children, allowing her to bring them back to the United States. 

Interestingly, the judge's granted the order because Giersch allegedly violated the prior order by not re-applying for a visa. The judge did not take issue with the legality of the prior judge's decision to send the kids to another country.

Temporary Order Blocked

Rutherford's celebration was then cut short when another California judge blocked the temporary order after Giersch asserted that Monaco, not California, had jurisdiction over the children.

In custody cases, a court can only make custody orders if the court has jurisdiction over the children. Usually, the place where the children lived, also known as their "habitual residence" has jurisdiction. While California originally had jurisdiction because that's where Rutherford and her family lived before the divorce, Giersch argues that Monaco now has jurisdiction because the kids have lived there for three years.

California and Monaco judges will now have to decide which court will have jurisdiction to make custody orders. Until then, Rutherford's children will remain in Monaco.

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