Family Law Corner: Jurisdictional Jetlag for the Jetset

Kelly Rutherford is heading back to court as her ongoing custody battle, now in its sixth year, rages on. Her child custody case has given her more publicity than her roles in “Gossip Girl” or “Melrose Place.”

For those who need a recap, in 2012, a California Superior Court judge ordered that her children with German businessman Daniel Giersch would live with him in France during the school year. The reasoning behind the ruling was Giersch’s U.S. visa had been revoked (due to accusations made by Rutherford’s legal team to the State Department suggesting he was involved in illegal activities) and therefore he would be unable to travel to the United States for his custodial time. Nonetheless, the Court also granted Rutherford liberal custodial time with the children, resulting in 50-50% timeshare.

At the time the California judge made the custody order, Rutherford was requesting to move with the children to New York, while Giersch was requesting that they reside with him in France. Faced with these two requests, the California judge (which had proper jurisdiction over the matter because the children were residents of the state) determined that it was in the children’s best interest (per In Re Marriage of Burgess (1996) 13 Cal.4th 25 and In Re Marriage of LaMusga (2004) 32 Cal.4th 1072) to reside primarily with Giersch in France. The court specifically referred to Giersch’s inability to visit the children in the U.S. and Rutherford’s “flexibility” to go back and forth between the U.S. and Europe, with Giersch assisting financially with her travel and accommodations.

Rutherford reports that since the ruling, she has made over 70 trips to and from Monaco, the tiny country on the French Riviera. During her last visit, she accused Giersch of refusing to allow her to take the children because she would not turn over their passports to a neutral party. Rutherford then filed an ex parte motion in California requesting temporary sole physical and legal custody of the children, which was granted in early June 2015. Much like an evening soap opera, however, the plot took another twist when shortly thereafter, the presiding judge of the Los Angeles Unified Family Court stayed the order until the California court could speak to a court in Monaco, because Giersch asserted that Monaco now has jurisdiction over the matter.

California Family Code §3447 provides that if a “proceeding for enforcement . . . is commenced in a court of this state and the court determines that proceeding to modify . . . is pending in a court of another state . . . the enforcing court shall immediately communicate with the modifying court.”

Apparently, the California judge who made the emergency order was unaware that an action was pending Monaco, thus triggering the requirement of §3447. According to ABC News, on June 11, 2015, the California judge spoke with the judge in Monaco and then set an evidentiary hearing in Los Angeles for July 9, 2015. This means that California has retained jurisdiction over the case, despite the fact that no one lives here anymore. It appears that Monaco wants nothing to do with this continuing “real life” soap opera.