Kelly Rutherford Update: The Case Gets Crazier

November 28, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

She’s back. Indeed, it’s as if she’d never left. The “she” I refer to is Kelly Rutherford about whom I’ve posted here (NPO, 9/19/12). It seems her efforts to wrest her two children from their father are never ending, but we knew that. The erstwhile Gossip Girl star has kept her name and face before the public for over two years pursuing her legal battle against Daniel Giersch, father of their two children, Hermes and Helena.

Giersch lives in France, having been denied a visa to reside in the United States. He seems to have committed fraud in the process of applying for his original visa. Now, we might expect that that, plus his inability to live in the United States would have been sufficient to deny him primary custody and all but the most minimal of visitation time. But that expectation would have been wrong. A California judge gave the pair 50-50 legal custody with Giersch being the residential parent. He pays for Rutherford to come to France to visit Hermes and Helena.

Now, that arrangement suggests that Rutherford’s behavior didn’t much appeal to the judge. And sure enough, it didn’t. Here’s what I wrote in my second post:

[I]t’s becoming apparent that the reason the judge issued a 50-50 order is Rutherford’s persistent attempts at alienating the children from Giersch and her utter refusal to co-parent with him.

And here’s what another article quoted a lawyer familiar with the case as saying:

“Family court judges don’t want one parent to try and alienate kids from the other parent. One of the characteristics of being a good parent is promoting a relationship with the other parent,” explains Taub.

In the judge’s decision, the judge chose to make Kelly’s ex husband the “residential parent” because “Daniel facilitated the relationship of the children with Kelly… and Kelly simply has not done so,” reports TMZ.

The judge cited the example of Kelly repeatedly failing to put Giersch’s name on their daughter’s birth certificate, despite being asked several times by the court, TMZ writes.

So it seems the judge actually read and applied California law that requires each parent to facilitate meaningful relationships between the children and the other parent. Rutherford hadn’t done so and, for the past two years, has continued her campaign of trying to get custody of the kids. The problem is, she’s going about it all wrong. The same lawyer quoted above went on to add this:

Her best option is to stop appearing in the media, keep a low profile, show contrition, demonstrate that she’s a loving, caring mom and stop knocking her ex on TV. The TV audience doesn’t have a vote,” he points out.

He also urges her to try and improve her relationship with her ex. “A lot of time when people calm now, they come to arrangements which work for them,” he advises.

But of course Rutherford’s done the opposite. Television personality that she is, she just can’t seem to behave like anything else. Time and again we see her face on television or on the cover of one tabloid newspaper or other.

And, needless to say, there’s always a crisis. Back in 2013, she informed one and all that she had been bankrupted by her unstinting fight to gain custody of her children. That of course was a bid for sympathy which was duly doled out by reporters who are happy to ignore the facts of the case. Kelly Rutherford is clearly a victim here – a victim of her own loony efforts to convince a by-now utterly unbelieving judge that she’s the better parent when her every act demonstrates otherwise. If she’d taken the lawyer’s advice and kept a low profile and acted contrite – who knows? – she might have succeeded by now. But instead she continues to shoot herself in the foot.

Her latest stunt is no exception. Indeed, she seems to have doubled down. Read about it here (Show Biz Spy, 11/26/14).

The United States Department of Homeland Security is taking Gossip Girl star Kelly Rutherford to task, for involving the agency in her bid to re-gain custody of her two children, Hermes, 7, and Helena, 5, who are both currently residing with her ex-husband, Daniel Giersch. has exclusively learned that lawyers for Homeland Security, submitted a legal brief to the United States Court Of Appeals, Second District, and contend Rutherford is unhappy with a judge’s order in Los Angeles, in which the children were sent to live with their father in France, after losing his visa to stay in America.

Er, the Department of Homeland Security? What, you may ask could that federal agency have to do with a child custody case in California? Good question. So good in fact that no one seems to have an answer. Actually, there is an answer; Kelly Rutherford and her lawyers seem to have gone off the deep end.

Rutherford filed a writ of mandamus seeking to order the Department of Homeland Security and its Secretary, Attorney General Eric Holder, the United States Department of Justice and others to order the return of Hermes and Helena to this country. (A writ of mandamus is a court order requiring a government official to perform an act he/she is required by law to perform but has not done so.)

But, I can hear you urging your original question “What do those federal agencies have to do with a custody case?” What possible duty do those departments or their secretaries have to Kelly Rutherford or her children regarding custody orders by a California family court? The full lunacy of Rutherford’s latest stunt can be seen in the brief filed in federal court on behalf of those various federal officials.

Dissatisfied with the result of a child custody proceeding in a California state court, petitioners/appellants seek a writ of mandamus to force the federal government — which had nothing to do with the custody proceedings or anything else related to this case — to take custody of two young children and prevent them from joining one of their custodial parents, as required by the state court’s order. Petitioners admit that they have no support for the relief they seek — unsurprisingly, as their request would require the federal government to routinely frustrate the lawful orders of state courts, extinguish the judicially confirmed rights of parents by unauthorized administrative action, and overturn constitutional principles of federalism and judicial finality. That is why the district court accurately described this action as “nothing more than a thinly-veiled attempt to repackage a custody dispute as a question of due process rights under the Constitution,” “wholly insubstantial,” and “frivolous.”

In the absence of any legal basis to compel the federal government to take custody of these children, petitioners rest their claims on a series of misstatements of the law. They contend that U.S. citizen children have an absolute right under the Fourteenth Amendment to remain in the United States — disregarding the decision of their custodial parent, confirmed by a court order, to take these two minors to France during the school year. Second, they ask the Court to hold that the Executive Branch of the United States government has a mandatory duty not just to rectify this alleged violation of the children’s rights, but to override state courts’ final decisions any time they violate any citizen’s rights under the Constitution according to petitioners’ theories — an argument entirely at odds with the historical and legal understanding of the role of the national government.

Because there is no basis for those contentions, the district court properly dismissed the petition for lack of subject matter jurisdiction. As the district court correctly determined, petitioners fall far short of establishing that jurisdiction under the mandamus statute exists because they can point to no law entitling them to the relief sought and cannot identify a plainly defined and peremptory duty of the United States to prevent the children from leaving the country in accordance with a custody order.

In other words, what Rutherford’s lawyers convinced her to do has no basis in law and doesn’t even make sense. The idea that the Department of Homeland Security or the DOJ would simply negate a state court order allowing children to be with their father in a foreign country is so far from the realm of legal reality as to be dumbfounding. When a federal court calls your action “frivolous,” you know you’re not on the firmest footing. More importantly, you can be pretty certain that you’ll soon be ordered to pay the government’s attorney’s fees in defending your frivolous action.

And the California family judge whose order Rutherford is attempting to sabotage through the back door? What must she be thinking about Rutherford’s “frivolous” action? I can only guess, but I can’t imagine its improved her thoughts about the Gossip Girl. From here it looks pretty obvious that Rutherford is bound and determined to do anything and everything except what would improve her chances at custody.

Kelly Rutherford obviously loves to be at the center of a drama. As an actress, that’s appropriate; as a mother, it’s usually not. But this is no drama; it’s a farce.


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