We have several appeals pending. The federal court ruled that it was a ‘state court’ matter – not proper for federal court, which is a bit odd given that federal courts have concurrent jurisdiction over Hague Convention matters and this was a Hague Convention case in the state court.”
It’s clear Kelly is living up to her promise to never stop fighting!
The Hague Convention is working against them in this case because it stipulates that a child’s residence is determined by where they’ve lived for the past six months. Since Hermes and Helena have lived in Monaco for the past three years, that is what gives Monaco jurisdiction under the Hague Convention. The fact that they were there on the order of a California court apparently doesn’t matter. Attorney Nancy Chemtob, who is not involved in the case, explained:
A custody case would be heard where the children have more connections. It’s really what’s more convenient for the children and where the case would get a better result on the facts – whether or not the children’s teachers would be called to testify or their doctors or their friends’ parents.”
The reason Wendy doesn’t feel this residency aspect of the Hague Convention shouldn’t apply is because the California court order that had the children live abroad specifically stipulated that Daniel Giersch, the kids’ father, not make any changes to the California custody agreement, which is that the parents have joint legal custody.
Key among the points we will make is that the father agreed emphatically in a California courtroom in 2012 that he would ‘never’ take any action in any foreign court, including specifically Monaco, France and Germany, where he would claim that the children are, or ask that they be declared, habitual residents of those countries or any other country.
“Remember, the children are not citizens of Monaco. Neither is either parent. So why would Monaco want to restrain the children from living in their own country? Monaco has no interest in the children, and we will be showing the Monaco judge the father’s agreement ‘never’ claim that the children ARE residents of Monaco, or should be declared residents of Monaco.
“The Hague Convention, to which Monaco is a signatory, is clear that when a parent makes an agreement never to establish a child’s residency in a foreign country, especially one where the child has no citizenship, no country can lawfully claim the child as its own resident.”
The California court papers that ordered Hermes and Helena to live in Monaco since Daniel was not allowed to enter the US stipulated:
The Court intends that each child’s habitual residence will remain the United States, and that any foreign travel or stays in other countries will be temporary in nature, and not result in a change of either child’s habitual residence, or of jurisdiction to modify custody and visitation orders, or issue new custody and visitation orders.”
Daniel refuses to comment on the case to preserve his children’s privacy. It does seem odd that the California court is ignoring its own order if the order specifically stipulated that the jurisdiction should not be changed, doesn’t it?
Photos by FAMEFLYNET