Kelly Rutherford has been ordered to appear in a New York courtroom tomorrow with both of her children, Hermes and Helena. This is in response to Daniel Giersch’s allegations that she has essentially kidnapped their children by refusing to return them to Monaco last week, per the Monaco court order. Legal experts don’t seem to have much hope that Kelly’s kids are going to be able to stay in the States.
One key issue is that both the United States and Monaco are signatories to the Hague convention, an international agreement to protect children’s best interests. Under the terms of the convention, signatories must respect court orders in other countries. Since both a California and New York court have said that they do not have jurisdiction in the custody case, and a Monaco court is declaring that it has jurisdiction, then the US courts should respect the order of the Monaco court.
Michael Stutman, head of the family group at Mishcon de Reya New York, explained to People that the New York judge has signed a writ of habeas corpus that Daniel filed.
The writ of habeas corpus is a quick way to get the U.S. court to recognize the Monaco court order and to enforce it. My guess is that Mr. Giersch’s papers in support of his petition were very compelling, and the odds are these kids are going back to Monaco tomorrow night.”
If that’s the case, then it sounds like the US courts are basically respecting the jurisdiction of the Monaco court, which likely won’t bode well for Kelly.
What will likely happen if the children are returned to Monaco? Michael said:
I would be surprised if she was allowed to take the children out of Monaco again without some level of security. What we do here, and I suspect they do there, is when someone is at risk of not returning the children, you make them post a bond or something of huge value to them, which they don’t get back until they return the kids, whether that’s money, whether that’s a passport. Maybe she won’t be able to travel with the children except one at a time, always having to leave a kid behind.
“She’s really opening herself up to some pretty miserable consequences. Nobody likes someone who decides to take the law into their own hands.”
This is what I was afraid of. Robert Wallack represented Kelly in her federal case, which was unsuccessful. He’s not currently part of her legal team, and he admitted he was concerned about the consequences of Kelly’s actions.
My fear for Kelly would be if they end up litigating in Monaco, and if Monaco keeps and case [sic] and Monaco decides custody or decides some type of visitation regime, that the courts there don’t allow the kids to leave in the future because there’s a concern about whether Kelly will return them or not. My concern is that she ends up with even less than she has now, if the current visitation and custody regime is upheld, that in the future she is not allowed to have them over here for these extended vacations, and that would be terrible.”
Robert did point out that Daniel had disobeyed court orders as well.
Daniel is no angel, and he has on several occasions violated the original California court order by not re-applying for the visa and by, instead of lodging the California order in Monaco and obtaining a mirror order, he’s gone and applied for custody there and gotten a grant of custody there. So he’s disobeyed the California orders himself. The courts will usually say two wrongs don’t make a right, and they don’t forgive someone for disobeying an order just because the other party has disobeyed orders himself.
“You’re certainly in better standing if you have clean hands, so the fact that Daniel has disobeyed orders I think helps Kelly, but it doesn’t erase what she’s done and what she’s doing. The last thing the courts want is a situation where either no one’s obeying any orders or you’ve got both parties picking and choosing which orders they want to abide by.”
Michael had this to say of Kelly’s refusal to return the children and violate the Monaco court order:
She’s certainly playing with fire. And she’s essentially handing the children over to their father on a silver platter.”
We’ll see what happens tomorrow. I hope Kelly has mentally prepared herself for the worst case scenario (the children return to Monaco).
Photos by FAMEFLYNET