Family Law Corner: Court Has Widest Discretion to Choose Parenting Plan for Former


“Gossip Girl” star Kelly Rutherford had one of the most contentious divorces and custody wars we have ever written about, complete with restraining orders, private investigators, and possible involvement by Rutherford’s in the revocation of her ex’s (Daniel Giersch) American visa. The actress, who since the cancellation of “Gossip Girl” has been relegated to made-for-TV movies (coming this fall!), has just filed for bankruptcy after feeling the financial stress of the litigation and her lack of acting parts.

The bankruptcy of one party does not usually have an effect in custody matters, but in Rutherford’s case it likely will. The Los Angeles Superior Court’s order on custody (which Rutherford unsuccessfully appealed) granted residential custody to Giersch in Monaco, with a 50-50% timeshare and joint legal and physical custody.  Additionally, Giersch was ordered to pay for six flights per year for Rutherford and to pay for her house and car while she is there.  This order was partially based on the flexibility of Rutherford’s employment, the incomes of both parties, and Giersch’s offer to pay for some of Rutherford’s expenses.  

The court’s order is a “temporary order” because upon the occurrence of certain events, such as Giersch’s American visa being restored, the custody “plan” would change.  Under California law, a temporary custody order does not require a “substantial change in circumstances” in order for a party to request a new order.   Montenegro v. Diaz,  26 C4th 249 (2001); Marriage of Lewin, 186 CA3d 1482, 1487 (1986).  Nevertheless, if Rutherford can no longer afford to travel to Monaco for her 50/50 timeshare, she has likely met that legal burden.

Thus, if Rutherford brings a motion to change the custody order so that the children reside primarily with her, the Court will have “the widest discretion to choose a parenting plan that is in the best interest of the child.”  In re Marriage of Burgess, 13 Cal.4th 25, 31 (1996).  In this case, because the parties share joint custody, the custody order "may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order." See Family Code §3087.  The trial court will determine de novo what arrangement for primary custody is in the best interest of the minor children.  Burgess at 13 Cal.4th at p. 40, n. 12.  If Giersch still cannot enter the U.S. and Rutherford cannot afford to travel, the Court will be faced with a difficult decision.