Kelly Rutherford's custody battle with her ex-husband Daniel Giersch has arguably made more news than any of her acting roles. And for the most part, she has told her story to the public the way she wants it. Rutherford's story of her U.S.-born children being supposedly forced to live abroad sounds very convincing when she tells it. Unfortunately, it's biased. Kelly Rutherford leaves out several crucial details in her telling, and it's those details that explain both why the judge ordered them returned to Monaco and exactly why that was done.
"Child abduction is a crime, and everyone involved in kidnapping or abducting the children will face the appropriate legal consequences. Anyone associating themselves with Kelly and her abduction is violating the law," as her ex-husband's attorney put it. That is correct. Despite what Kelly Rutherford claimed on the show Good Morning America, "kidnapping" or custodial interference has a specific definition, and it's not only about not knowing where the children are.
The Hague Convention on the Civil Aspects of International Child Abduction is a treaty few know about, but the few that do know about it know it well. In a nutshell, its goal is to solve international custody disputes by making the ruling in the child's country of "habitual residence." In this case that happens to be Monaco, which the U.S. courts involved with Kelly Rutherford's case have agreed is the forum for disputes.
"But they're U.S. citizens!" some protest. Yes, they are, but habitual residence is not determined by citizenship (otherwise children with dual citizenship or more would be at quite an impass). The reasons the children now reside in Monaco and France are detailed in the statement of decision from October 2013, and it is revealing. The courts show that their father originally resided in the United States, but his visa was revoked. And the reason his visa was revoked was because of actions by Kelly Rutherford's attorney himself: he threatened the father with deportation unless he signed away his rights to the children, and when he refused the attorney contacted the State Department and eventually was successful at revoking his visa. Since their father can't return to the United States after his visa was revoked, the court decided that the children reside with him, giving Rutherford visitation both in the United States and in France and Monaco would give both parents the best chance of being with them as much as possible.
In both California and New York, violating this agreement is custodial interference: kidnapping. This is the case no matter whether the whereabouts of the children are known.
While criminal charges could have been issued for Rutherford, she was merely ordered to return them. So not only was the judge right, Kelly Rutherford is fortunate she has no felony charges pendgin against her. Legally, she has no basis to keep them in the United States after her period of visitation. It's simple; the judge is right and Kelly Rutherford is wrong.
[Photo by Astrid Stawiarz/Getty Images for Blushington]