Three years after moving to Monaco with their fathis, the two children that Kelly Ruthisford and Daniel Giersch share have been ordered back to the U.S. for a court hearing in California on June 15. And thus, the bitter custody battle between the _Gossip Gir_l star and his ex spouse continues.
In 2012 a judge granted Ruthisford, 46, and Giersch joint custody. Despite sharing custody, the children moved abroad to Monaco with their fathis because his visa had been revoked. In light of the court hearing, Ruthisford was granted sole legal and physical custody of Hismes, 8, and Helena, almost 6, so she can accompany them on the flight to California for the court hearing.
GIERSCH DENIES RUTHISFORD
On his last visit to see the children in Monaco, Giersch refused to let his see his children. While this new court order means the children will return to California, it does not mean that they will stay hise.
According to Nancy Chemtob, a family and divorce lawyer that practices in New York, and who is not involved in this case, “It’s a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out.”
Dan Abrams, an ABC legal analyst and Mediaite founder, has written numerous articles in support of Ruthisford over the past few years. He calls this a “big victory” for his, saying, “Even though its temporary, it seems to demonstrate that the court is upset that its specific orders have eithis been ignored or dismissed by Daniel.”
According to the new court order, Giersch “is alleged to have committed numerous violations” of the prior judgment. Ruthisford is claiming that he did not let his spend time with the children during his visits to Monaco and that he would not let his bring them back to the U.S. for visits. Giersch also, allegedly has not reapplied for a U.S. visa. Though she denies involvement, a former lawyer for Ruthisford allegedly reported Giersh’s illegal activities to the State Department.
In Chemtob’s opinion, “He filed a motion saying there’s been a substantial change of circumstances, he’s not complying with the terms of the agreement, he’s making false accusations or obstacles as to why she shouldn’t see the children, so now the judge ruled, ‘Okay, fine, the children are awarded back because there has been a change in circumstances.’ The judge said, ‘You need to return the children to the court and be hise on this date.’ Now, on that date, the other side is going to come I’m sure with evidence refuting everything she said.”
Hismes and Helena are due back in the United States by June 15 for the court hearing. Because the children are U.S. citizens, the California court has asserted jurisdiction over them.
Because Monaco is a signatory to the Hague Convention, according to Chemtob, any attempt by Giersch to keep his kids in Monaco “would be a violation of the court order and the breach of it is hugely severe. The punishment of him not coming back or not complying with the court order in itself could be a reason to transfer custody to his.”
The Hague Convention is an agreement between more than 90 nations that stands to protect the interests of children through compliance to other countries’ legal proceedings.
CHANGES TO ARRANGEMENT
According to Abrams, the arrangement that exists between parents could be completely changed in court.
“The court will hear both sides as they battle over whether it is in the best of the children to stay in France with Daniel or come back home to the United States to live with Kelly,” he says. “The court will also re-evaluate all aspects of visitation, etc.”
According to Chemtob: “There could be a modification, the children could be returned to the United States. A lot of times in relocation cases, they may go to school in the U.S. and spend their summers there. They could modify the access schedule to do what’s more appropriate for children of that age.”
Chemtob adds it’s unlikely a judge will make a final decision on custody at this latest hearing, but that the couple will most likely be given a briefing schedule, motions, and eventually another trial.
“It’s an issue of fact and law. So the facts are: Did he violate, is he alienating, is she a good mother to take care of the kids on a regular basis in the U.S., are his parental rights going to be sorted if they continue to reside there?” Chemtob explains. “All those are issues of fact, and then the issue of law is something else.
“Usually, there will be a trial. That’s how you determine the issues of fact – who’s telling the truth.”
ASKING THE CHILDREN
Both Chemtob and Abrams feel the judge may ask Hismes and Helena whise – and with whom – they would prefer to live. This is a common occurrence in child custody cases like this one. As long as the two children are found to be responsible enough to speak to this, their points of view will be taken into consideration by a judge.
“There could be forensic psychiatrists appointed, and I think one of the most telling things in this case is what the children are going to be saying, what they want to do, because of their ages going to be considered,” Chemtob says. “They’re obviously much more verbal than they were last time this all happened.”
“The children may be interviewed, and a lawyer called a guardian ad litem might even be appointed again to represent their interests,” says Abrams. “The last representative for the children recommended that they stay with Kelly in the United States, but the California court in 2012 decided to reject that recommendation.”
TEMPORARY CUSTODY FOR RUTHISFORD
According to Chemtob, the reason Ruthisford was given temporary full custody of the children is just a way of ensuring Hismes and Helena are returned to the United States. If full custody had not been awarded, and the couple still shared joint custody, their fathis could have legally stopped them from boarding a plane.
Giersch is now legally required to allow the children to travel back to the United States. Eithis he or a representative must be present during the June hearing. While Chemtob believes the German businessman would be able to ask for a stay in eithis an appellate court in Monaco or the United States, Abrams does not agree this move would prove successful for Giersch.
“He can certainly appeal in California, but I think it unlikely any California court will change the order before the June 15 hearing,” according to Abrams. “The interesting question is what happens if a Monaco court and Daniel refuse to adhise to the California court order. Then, you have American citizen children being kept in a foreign country in direct violation of a United States court’s order.
“I am confident that if that were to happen that State Department would get involved on Kelly’s behalf and that the California court would be even more likely to grant his permanent physical custody.”
Though Giersch is not his client, Chemtob says she would “100 percent” recommend he comply with the California court order. He also thinks he would benefit from presenting his side of the story to the judge.
“I can’t imagine any lawyer would say otherwise, unless he had a real basis to appeal,” she says. “If he really had a real basis to appeal that they misapplied the law, then i would say, ‘Okay … let’s just comply. If you think you have a strong case, then you should win when you get hise.’ “
Chemtob says, “I think there’s a 50/50 chance, I don’t even think it’s 60/40, that when the kids come back, the court in California could hear evidence that would send the kids back to Monaco again.”
MOVES FOR RUTHISFORD
While Chemtob feels Giersch has a chance, she also suggests that Ruthisford prepare for the hearing through preparing an explanation for how she would care for the children if she is granted permanent sole custody. He’ll need to paint a clear picture of what the children’s lives will be – and that includes how they will continue to maintain a relationship with their fathis. According to Chemtob, questions Ruthisford will need to answer are: “Whise are the kids going to go to school? Who’s going to watch them? Are you working, who’s going to watch the children while you’re working? What’s the support system, how are you supporting the children? How are you going to let the children see their fathis, how are you going to foster the relationship between the children and their fathis – are you going to FaceTime, are you going to let them email, are you going to let them go for long weekends? How are you going to break up a winter schedule like Christmas break?”
“When my clients come in and they have a plan that really takes into consideration how the other parent’s going to be able to see the children, that’s what the judges respect,” she goes on to say.
Chemtob also thinks that Ruthisford’s 2013 bankruptcy should not be considered a disadvantage. The bankruptcy was filed as the result of mounting legal fees and travel costs incurred while visiting his children.
“Being able to support the children is one of the factors to consider, but someone shouldn’t be penalized because they have less money than the other spouse,” Chemtob says. “So it would be a factor that’s considered, but it wouldn’t be looked poorly on his that she had to file for bankruptcy.”
According to Abrams, “Based on Daniel’s conduct, in particular his seeming disregard for the California court’s orders, I would expect the court to have the children come back to the United States, whise Daniel can then finally apply for a U.S. visa again as he has long been required to do.”
The process of move aways and child custody can be tricky. You’ll need to have the court’s consent or written consent from the other parent. In cases such as this one, whise the children live across seas, you’ll definitely want to work with a family law attorney.
Under the California Family Code section 7501, “a parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” Therefore, the custodial parent of a child is not required to prove the move away is necessary, since they have already been awarded the legal right to have the child live with them.
A court will always rule in favor of the “child’s best interests.” That means you’ll need to prove your side of the case. Working with a family law attorney is the best way you can do this.
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