Why the Gossip Girl Rutherford New York Jurisdiction Decision Make Sense

Why the Rutherford New York Custody Jurisdiction Decision Makes Sense

Kelly Rutherford at "As Seen In...Harper's Bazaar" presented by L'oreal Paris to Benefit the Ovarian Cancer Research Fund. Lindbrook Gallery, Westwood, CA. 12-08-05

Recently, well-known actress Kelly Rutherford was ordered by the New York County Supreme Court to return her children to their father in Monaco, where they had been living after the father lost his U.S. visa. Rutherford argued that she felt “lawfully” unable to remove her children from the United States so that they could live with their father in a foreign country. However, she complied with the order that was given by the judge, demanding that the children be reunited with their father and returned to Monaco. Under the facts of the case, the decision of the New York Court makes sense – despite the personal feelings expressed by Rutherford herself.

Uniform Child Custody Jurisdiction Enforcement Act

The case makes sense under the law since according to the Uniform Child Custody Jurisdiction Enforcement Act, New York would not have been considered to be the residential home state of the children in question. The facts suggest that instead the children were simply visiting the state, and their mother, after a California court issued custody to the father, Daniel Giersch, in 2012. If another country or state had not been given jurisdiction and the children were present in New York, then the New York Court may have been able to take up the case. However, as the case stood, New York simply did not have jurisdiction to allow Rutherford custody.

In order for the New York Court to establish jurisdiction in changing or altering a child custody order, section 75 of the Domestic Relations law demands that the state must be determined as a “home state” for the children involved. The “home state” of a child is defined as the state that the child has been living in with one or more parents for a period of at least six months before the beginning of the proceedings. Under the law, a home state remains as such for as long as the child in question resides there.

Importantly, the discretion that a court possesses in exercising jurisdiction is only acknowledged in the circumstances wherein the specific child has connections deemed to be “significant” with the state. Simply put, this means that the longer any child is removed from a particular state or country, the more likely it is that the original home state will be required to relinquish their jurisdiction. Though Rutherford has argued that Giersch was only supposed to be given custody over the children temporarily while he managed visa issues, the children have now been away from the states for too long for either California or New York to be defined as their “home state”.

Although the UCCJEA allows for certain provisions that may be considered in conjunction with “emergency jurisdiction” – for instance, if the child was abandoned, or the mother, father, or a sibling is in need of protection, in the Rutherford case, there appears to be no basis for emergency jurisdiction as outlined in the statute. The simple belief that the mother had that their children should not be sent to a foreign country does not count as a reasonable basis. What’s more, New York law must recognize the custody and parenting time orders issued by foreign countries (so long as that country meets a minimum criteria), in the same way they would an order from the United States.

The Hague Convention

The decision that the New York Court has no jurisdiction over this particular case also makes sense in accordance with the Hague convention – a treaty or international law, which requires for the return of children to a signatory nation if they are considered to be a “habitual resident” there. The Hague convention can be a complicated matter to understand, particularly because the law does not specifically outline the meaning of “habitual residence”. However, in most cases, the term is used less as a stringent technical term, and more of a term to be considered in conjunction with the aims of the Convention itself – as a form of discouraging parents from removing their child from their current place of residence.

Although the partner countries that are involved within the Hague convention may be permitted to refuse to send a child or children back to another country or state if certain exceptions are in place – none of those exceptions seem to be relevant in this particular case. For example, one exception would occur if returning the children to Monaco could be regarded as a violating their fundamental principles of basic human rights.

As with a number of laws relating to child custody, and children, alternative countries may interpret the various considerations and exceptions of concepts like the Hague Convention differently, and the law requires signatories to show respect to the rights of access and visitation generated in other courts. However, all courts must consider the best interests of the child in making decisions.

As complicated as the situation may be, the decision that the New York court did not have jurisdiction over the Rutherford custody case appears to be the right one, whether under the Hague convention or UCCJEA. The decision of whether the children should be permitted to live with their father in Monaco is for the courts in that location to determine – not the New York Courts. According to the news, Kelly Rutherford will be fighting to retain custody within the United States, however she will be going to Monaco to do so this time around.

To find out more about the UCCJEA, and other child custody, parenting time or visitation matters, please feel free to visit other blog entries or web pages. Also please feel free to contact us about your free initial consultation – we look forward to speaking with you.