The Rutherford-Giersch Custody Battle

The Rutherford-Giersch Custody Battle

Last week Kelly Rutherford lost the custody battle she has been waging with ex Daniel Giersch since 2008. Below we explore their much publicized divorce and the even more publicized custody dispute that followed.


The Rutherford-Giersch romance is one that could only be cooked up in Los Angeles. The two met in 2005 after a waitress at an LA restaurant told Rutherford that Giersch had spotted her and left his e-mail information behind in case she returned to the restaurant. She did. The two got together just a few months later. The 30-year-old Giersch, six years younger than the Gossip Girl star was, according to Rutherford, “cute, incredibly charming, a little bit of a playboy.” Giersch was a tech entrepreneur that had made a small fortune on a same-day-postal-service company in Germany at just 19. The two fell for each other and were pregnant with their first child, Hermes within two months of their meeting. They were married on August 18, 2006, two months before she gave birth. Then, just two years after Hermes was born, Rutherford started noticing somethings about Giersch that made her uncomfortable. “Daniel was subtly verbally abusive,” she said in an interview with Vanity Fair magazine. It seemed “he was trying to alienate me from everyone in my life—my parents, my brother.” She later testified in court that “he did not want my son to have a U.S. passport. Only a German passport.” While she didn’t mind that Hermes had a German passport, she also wanted him to have an American one. She also mentioned that “[Daniel said he] never wanted to pay taxes in the U.S. or be on the U.S. radar.” In 2008 Rutherford became pregnant with the couple’s daughter, Helena. And just three months into the pregnancy, in December, Rutherford initiated divorce proceedings, citing “irreconcilable differences.”

The Rutherford-Giersch Custody Battle

That’s when the divorce got even uglier. According to Rutherford, “I wanted us both to be great parents. I wasn’t asking for full custody.” Instead, the actress sought joint custody, with her as the primary residential parent. Family law courts favor awarding joint child custody to both parents, due to the fact that typically, it’s been shown that child’s respond best to both parents being in their lives.

Joint Child Custody

Joint custody is when two parents share decision making responsibilities and / or physical control of the child or children they share. Joint custody is able to be awarded to parents that are divorced, separated, no longer living togethis, or even if they never lived togethis.

Forms of Joint Child Custody

Thise are different forms of joint custody that can be awarded, including:

  • joint legal custody. This means both parents are able to make decisions regarding the child, including religion, education, medical, and any legal matters.
  • joint physical custody. This means a child spends equal time with each parent.
  • joint legal and physical custody.

While it’s a common practice for parents to share physical custody and legal custody, it’s not always the case that parents that share legal custody also share physical custody.

Joint Child Custody – Advantages and Disadvantages

There are a number of advantages and disadvantages to joint child custody. Children are able to have contact with both parents. Additionally, parents are able to share some of the hardships that come with co-parenting. But children also often have to be shuttled between parents in joint physical custody situations. This can be difficult on a child, especially if parents are noncooperative. Because of some of the disadvantages, it’s important that parents work to create a harmonious co-parenting situation. Maintaining detailed agreements surround holidays, expenses for clothing and medical care, as well as creating a child’s own space in each household is crucial to creating a successful joint custody arrangement.

While Rutherford sought to create a 50-50 custody relationship with Giersch, it seems he had other plans. In response to her divorce and custody petition, he sued for sole legal and physical custody of Hermes and Helena. But by late 2009, the 33-month-long custody trial commenced. Giersch’s attempt to get sole custody was off the table and both he and Rutherford had agreed to joint legal custody. The turning point came in December of 2011, when a lawyer employed by Rutherford’s lawyer stepped forward with some questionable information about Giersch’s visa. Rutherford knew nothing about the attack that would be waged on Giersch. It turns out that Giersch was, according to the lawyer, in the country unlawfully and was potentially a risk for abducting the children. Giersch’s visa was, according to him, revoked a month later. He quickly fired off an e-mailed revocation notice and plan for the children to primarily live with him in Monaco, since he was no longer allowed to re-enter the United States. While details of his via revocation are still shrouded by State Department privacy rules, Giersch’s lawyer contended that he has done everything to try and re-obtain his visa. The burden of proof was now on Rutherford to prove that the health and safety of the children would be jeopardized by them moving to be with their father. In essence, the judge figured the children had a better chance of being able to see their mother in Monaco than see their father in the United States. Citing various examples, the judge ruled that Rutherford could not be trusted to facilitate a relationship between her children and Giersch. It was decided in a tentative order that Giersch would move the children abroad. It was more than a year before the judge issued a permanent order, but by then the movement towards Monaco’s assumption of jurisdiction was already in place. The next few years Rutherford spent flying back and forth between the U.S. and Monaco at least every third weekend - more than 70 total round-trip visits. While a judge ordered that Giersch pay for 6 round-trip coach tickets, Rutherford had to pay the remaining amount. As a result of the legal fees and money spent flying to see her children, in May 2013, Rutherford declared bankruptcy.

The Rutherford-Giersch Custody Battle

Last May things got even more confusing. A California judge granted Rutherford sole temporary custody. Giersch counter-filed. The decision was put on hold until it could be determined if California still had jurisdiction over the case. Last June, Monaco granted Rutherford the legal right to fly the children to the United States for the summer. Then last August, things got even more confusing. A Los Angeles court said it no longer had jurisdiction, and a New York court then declined jurisdiction. The day Rutherford was supposed to put Helena and Hermes on a plane back to Giersch she made a risky decision: she announced in a statement that “no state in this country is currently protecting my children,” and that no American court could then compel her to send the children back to their father. Within days, New York Supreme Court justice Ellen Gesmer ordered the children to return to Monaco with Giersch’s mother.


Just last week Rutherford lost custody of the children and was also further barred from bringing them to the United States. Full custody was granted to Giersch.   When asked how she felt about the final decision, Rutherford answered, “I think like any parent would feel.” It seems her decision to not send her children back to their father at the end of the summer might have been the final blow in an already heart-wrenching custody battle. Michael Stutman, head of the family family group at Mishcon de Reya New York, weighed in on the case at the end of the summer when Rutherford refused to send her children back to Giersch. While he is not directly connected to the case, he said, “I would be surprised if she was allowed to take the children out of Monaco again without some level of security.” He also felt that “Kelly’s failure to deliver the children… likely bought them a one-way ticket to Monaco. Given Kelly’s initial failure to send the children back, showing up without them was probably the nail in her coffin.”

Know How to Handle Your Child Custody Case

Child custody cases can get combative. Typically, both parents want equal time with their children. But all too often a parent will try to argue that the othis parent isn’t fit to raise a child. Hise are some things you can do to protect yourself when entering a litigious child custody case.

Record Everything

When resolving child custody cases, if a parent is able to demonstrate how the othis parent and the child or children interact, it can help prove their side of the case. Because of this, it’s advised to record everything, including:

  • If the othis parent does not follow or stick to a pre-arranged visitation schedule
  • Any changes in the child or children’s behavior following the time they spend with the othis parent
  • If the othis parent threatens legal action against you
  • Any concern you have regarding the child or children’s physical well-being during the time they spend with the othis parent

Documenting all these things is very important to building your case. But it should also be fairly documented, including any positive interactions. Being able to remove any emotions you have about the othis parent will help you stay focused on creating an unbiased record. State the facts and try to keep the emotions out of it.

What to Record and How-to

Using a spiral notebook, Excel document, or any othis form that will help you keep track of every interaction, note the following:

  • Dates
  • Times of calls or visits
  • Topics discussed (eithis between you or the othis spouse, or between the othis spouse and your child or children). This does not have to mean an invasion of privacy, but if you’re able to get a gauge of what was discussed between your child or children and the othis parent it only builds a stronger case
  • Duration of phone call or visit
  • Was the interaction spontaneous or part of a pre-arranged visitation schedule?
  • How the child or children felt prior to the visit or call, as well as after

 Additional Tips

  • Be consistent in your record keeping. If that means setting a daily time to record anything that has happened, then do so. Waiting days or weeks to record an interaction will make it difficult for you to remember specifics.
  • Be neutral! Try to not let emotion get ahold of you.
  • Research your state laws regarding auto recordings and telephone calls. In some jurisdictions, recording conversations is illegal.
  • Work with a lawyer.

Working with a Divorce and Child Custody Attorney

If you are facing a divorce or a potentially brutal child custody case, you should work with a family law attorney that can take a look at your specific situation and give you advice based on it, rather than approach it with a one size fits all mindset. Your specific situation will be particular to you and your marriage and the way your life was set up during the marriage. This might mean major financial decisions regarding retirement funds, property, child support and custody, and alimony. A divorce attorney will work with you to help you decide how you want to tackle these elements of your marriage and divorce, while also providing guidance and support. They will be able to lead you through the process while keeping you from procrastination and caving into pressure. They’ll also be able to help ensure you meet all the required timelines while ensuring that you get a fair case and trial should you need to go to court. Lastly, they’ll be able to help you find the freedom and new life you are seeking - one that is entirely on your terms. For advice on divorce, you need the expert law firm of 619 DIVORCE. Schedule a consultation today. (619) DIVORCE 3555 4th Ave San Diego, CA 92103 Phone: (619) 503-3050