Gossip Girl star Kelly Rutherford and her ex-husband, German businessman Daniel Giersch, were embroiled in a 33-month-long controversial custody battle over their two children.
A California court ordered the children to live with Giersch in Monaco temporarily in 2012 when his U.S. visa had been revoked. The court thought it would be easier for Rutherford to travel to Europe to see the children and this would best facilitate the children's access to both parents. For 3 years she travelled to see her children every 3rd weekend (more than 70 round-trip visits). During this time, Rutherford filed for bankruptcy, largely due to the $1.5M in legal fees she racked up in relation to her divorce and custody dispute, not helped by Gossip Girl's cancellation.
In May 2015, a California court granted Rutherford custody of the kids for a 5-week summer break in the United States. Then, another California judge ruled that California did not have jurisdiction over the child custody case and New York also ruled it did not have jurisdiction. Monaco ultimately had jurisdiction and Giersch was awarded custody again. Rutherford was ordered to return the kids back to Monaco. She disobeyed the court order and refused to return her kids, making a statement to PEOPLE claiming that because no U.S. state had jurisdiction, then no state in the country required her to send the children away.
Giersch accused Rutherford of kidnapping the children and his lawyer called it an abduction. New York ordered for Kelly to return her children to their father in Monaco, based on the Hague Convention (which ensures that rights of custody and access under the law of one of the Member States are respected by other Member States by requiring a parent who internationally abducts their child in breach of their custody right to return the child to the parent with custody). A U.S. appeals court refused to hear Rutherford's appeal.
A final custody hearing took place in December and PEOPLE confirmed she lost custody of the kids and isn't allowed to bring them to the United States. According to TMZ, the decision by the Monaco court was based on the strong risk that Kelly would abduct the kids and keep them in the United States, away from Monaco and their father. The Monaco court awarded custody to Giersch. The children, now ages 9 and 6, will continue to live with him in Monaco. Both Kelly and her ex-husband may make decisions concerning the kids' lives but she only has visitation and accommodation rights within France and Monaco.
There is a danger of parental kidnapping by a parent who has been unsuccessful in custody proceedings, as Kelly Rutherford was in her custody battle. An international response to this danger has been the Hague Convention on the Civil Aspects of International Child Abduction, of which Canada is a signatory. If the custody proceedings had been initiated here, it is likely the same outcome would have happened - that a Canadian or Ontario court would recognize Monaco as having the jurisdiction for this case and would ensure the prompt return of the children to Monaco.
It is not surprising that disobeying the family court order caused a massive failure of Rutherford's custody case. The court viewed the situation the same a court would in Canada. Section 16(10) of the Divorce Act provides that custody orders shall take into consideration the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child and shall consider the willingness of the person for whom custody is sought to facilitate such contact. Kelly Rutherford's attempts at keeping her kids from her ex-husband and especially her willful disobeyance of the court order were proof of her inability to facilitate contact for her children between her and her ex. Giersch is better able to facilitate the contact as he showed willingness to enable the children to see their mother.
Enforcement of custody orders moves past the family law realm into criminal law. In Canada, it is a criminal offence to kidnap one's own child in contravention of a custody order. Section 282(1) of the Criminal Code provides that a parent who conceals, details, receives or harbours their child in contravention of the custody provisions of a custody order with the intent to deprive a parent who has the lawful care of that child is guilty an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction. A parent is also guilty if they fail to return the child following the exercise of visiting rights. If Rutherford were in Canada, she could be facing fairly serious punishment for ignoring the custody order and failing to return her children to her ex-husband in Monaco. In the end, although Rutherford lost custody and can no longer bring her kids to the United States, she is lucky she is still able to have access to her children in France and Monaco. There could have been a much more to gossip about.