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The Kelly Rutherford Case and International Custody Disputes

On Tuesday, August 11, 2015, a New York court ordered the children of the television “Gossip Girl” actress, Kelly Rutherford, to be returned to their father, Daniel Giersch,  who has been living with the children in Monaco since 2012. Rutherford and Giersch wed in 2007 and welcomed their first child, Hermes, the following year. The marriage soon broke down and Rutherford filed for divorce in California in 2009.  At the time, she was three months pregnant with their second child, Helena.  In their divorce, the parties battled over parenting time and custody with each making allegations about  the other. Over the course of the extremely contentious litigation, Giersch had his visa revoked and had to move back to Europe. In 2012, a California court ruled that the parties should share custody, with the children living with Giersch in France and Rutherford having to fly to Europe for parenting time with the children, both of whom are U.S. citizens. Giersch’s inability to visit the United States due to his revoked visa apparently was a factor in the California family court’s decision.  The parties made arrangements for the children to periodically visit Rutherford in the United States.

Most recently, the parties’ son – Hermes, 8, and daughter – Helena, 6, spent part of their summer in New York with their mother. Controversy erupted again this past week when Rutherford refused to send the children and had to be court ordered to do so in New York. The children were ordered to be turned over to Giersch’s mother, who returned the children to their father in Monaco.  A hearing on the issue of custody and parenting time is scheduled to be heard in a court in Monaco on September 3, 2015 and Rutherford has vowed to appeal the decision. Rutherford has also promised to take her fight regarding the California court’s decision to deny jurisdiction to allow the Monaco court to decide this matter all the way to the United States Supreme Court.

New Jersey, like California and New York, has has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), N.J.S.A. 2A:34-53 to -95, which applies to multi-state and international jurisdictional disputes involving custody.  The purpose of the UCCJEA is to ensure that custody determinations are made in the jurisdiction that can best decide a custody matter by deterring interstate parental kidnapping, promoting uniform jurisdiction, enforcing interstate custody and visitation orders, and preventing “forum shopping.”  When determining the appropriate jurisdiction to resolve a custody dispute, the courts first determine where the child’s “home state” was when the action commenced. N.J.S.A. 2A:34-65(a) defines a child’s “home state” as “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding . . . A period of temporary absence of any of the mentioned persons is part of the period.” The statute specifically uses the language to describe where a child “lived” rather than where the child was “domiciled” in order to avoid analysis of the state of mind of the child or the caretakers on this issue. The definition “connotes physical presence within the state, rather than subjective intent to remain.” Sajjad v. Cheema, 228 N.J.Super. 160, 172-73 (App.Div. 2012).

After determining whether New Jersey is a child’s “home state,” the court must then determine if a custody proceeding has been commenced in another state or country. If so, the New Jersey court would stay (or put a hold on) its current proceeding. A decision would then have to be made as which state/country would be the more convenient forum. Pursuant to N.J.S.A. 2A:34-71(b), when a New Jersey court is considering whether it is the appropriate forum to exercise jurisdiction, the Court must consider all relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this State;

(3) the distance between the court in this State and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues of the pending litigation.

When a court’s jurisdiction to decide a custody matter is disputed, the Court must closely analyze the facts presented and make specific findings supporting its decision to either assume or reject jurisdiction. New Jersey Court Rule 1:7-4; J.A. v. A.T., 404 N.J.Super. 132, 145 (App.Div.2008).  The facts involved in the Rutherford case, like many international custody disputes, are novel. Further complicating matters is the financial strain that the protracted litigation has placed upon Rutherford, the travel visa issues facing Giersch, and the young ages of the children. Moreover, Rutherford’s practice of self-help by refusing to return the children, an action in direct defiance of the court’s order,  will likely have a negative impact on her case.   It is important that you have experienced representation to represent you in navigating a cross-border or cross-state custody dispute. The lawyers at James P. Yudes, A Professional Corporation are here to assist you.