Family Law Corner: Custody Battle Escalates as Question of Jurisdiction Lingers

Last Family Law Corner, we updated Kelly Rutherford’s epic custody battle. When we left Rutherford’s story, it was just as a dramatic as something you would see on “Gossip Girl.” In June, Rutherford petitioned the California court to keep jurisdiction of her child custody case, and it appeared as though the court was leaning in her favor. As previously described, under Family Code §3447, when a proceeding for enforcement is commenced in California and another court has the same matter pending, then the enforcing court (California) shall communicate with the modifying court (Monaco).

As a quick refresher, Rutherford’s custody battle with her ex, German businessman Daniel Giersch has been going on for years. The court initially ruled that the children would live in Monaco with Giersch (due to the revocation of his visa), but with a visitation schedule that results in 50-50% timeshare between the two parents. Rutherford traveled back and forth from Monaco for three years, but recently filed an ex parte request in California for an emergency change to custody. Giersch responded that Monaco now has jurisdiction over the matter.

After discussing the matter with the Monaco court, the California court set an evidentiary hearing. However, it ultimately determined that California should not retain jurisdiction and that Monaco is the appropriate jurisdiction. Rutherford then filed in New York, where she now lives and the children visit. New York also declined to exercise jurisdiction. This means that Monaco appears to be the only court willing to exercise jurisdiction over this custody matter.

Rutherford has been vocal in the media about the injustice she perceives in having her American-born childrens’ rights determined by a foreign court, but under California law a foreign court may have proper jurisdiction over American children.

In deciding whether or not to continue to accept jurisdiction, a California court looks at the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act (or its prior version) is accepted around the country and facilitates uniformity in how states determine child custody jurisdiction.

Under the UCCJEA, if a state is a child’s home state (i.e., where the child has lived for at least six months before the custody action commenced), then that state has jurisdiction. Family Code §3421. Under the UCCJEA, ‘states’ may refer to foreign countries so long as they are exercising jurisdiction in substantial compliance with the UCCJEA. California Code §3405; Marriage of Sareen (2007) 153 C.A.4th 371, 376.

The latest reports are that Rutherford is now refusing to return the children to Monaco after spending most of the summer with them in the U.S. She released a statement on August 8, 2015 which suggests she has no intention of voluntarily letting Monaco take jurisdiction: “No state in this country is currently protecting my children . . . it also means that no state in this country currently requires me to send the children away. Hence, I have decided that I cannot lawfully send my children away from the United States to live in a foreign country.” It will be interesting to see whether Monaco will proceed with a child abduction action against Rutherford.