When the Family Court System Fails to Act in the Best Interest of a Child

by: Tina Swithin

When a person first reads about Kelly Rutherford’s international custody battle, the reaction may be similar to mine and countless others. Initially, I was left thinking that there must be more to the story.  This case is of particular interest to me because of my role as an advocate for children and parents who are involved in the Family Court System. With the current divorce statistics in the United States remaining at approximately 50%, this is a case that should be followed by every person in America regardless of marital status due to the appalling decision handed down by a Family Court Judge in California.

Labeled by ABC’s legal analysis, Dan Abrams and many others as the worst custody decision ever made, Los Angeles County Judge Theresa Beaudet ordered two young children, Hermes and Helena (ages 7 and 4) to be uprooted from their home in America and sent to France with their father.  The decision was handed down when their father, Daniel Giersch, of Germany, was deported and banned from the United States by the State Department amidst suspicions that Mr. Giersch was a suspected drugs and weapons dealer. One part of this equation that defies logic is that the children are both American born and raised citizens. The latter part that leaves me and many others baffled is that neither Rutherford nor Giersch are French citizens yet the children are ordered to reside and be schooled in France.

The Family Court System is tasked with the responsibility of acting in the best interest of the child but being sent to live in a foreign country and away from their mother is clearly not in the best interest of the children. If the State Department finds Mr. Giersch unfit to even enter the United States, how is it possible that Judge Beaudet could find him fit to be the primary caregiver of two small children? Is it in the best interest of Hermes and Helena to reside almost 4,000 miles away from their mother? Obviously, it isn’t.

Sadly, this story reads like the script of one of Rutherford’s television movies but this is not a movie and Rutherford’s children are the ones suffering. Initially Rutherford opposed the Judge’s decision and requested a stay of proceedings while she appealed however, her request was denied and scheduled to be reassessed in two years.  While everyone agrees that the situation is both heartbreaking and terrifying for Ms. Rutherford, multiple legal teams have been unsuccessful in their attempts to appeal this ludicrous decision which shines a huge spotlight on the failures in the Family Court System.

This case also showcases the inequality that parties often face in Family Court when there is a disparity in household income levels. Ms. Rutherford, known for her roles on shows such as Melrose Place and Gossip Girl, along with numerous movies, has been left bankrupted due to her legal fees and her ongoing struggle to bring her children back to the United States. After spending an estimated $2 million dollars, which includes her life savings and retirement holdings, Ms. Rutherford is left in a position to act as her own attorney against a man with a full legal team who is extremely wealthy yet refuses to answer questions in court about his occupation or financial situation. 

I recently reached out to Ms. Rutherford to discuss the status of her case.

“What the judge in California has done is unconstitutional. There is something very suspicious taking place and the decision to remove Hermes and Helena from their home in the United States is clearly not in their best interest. Originally, I had primary custody and offered to take the children to see their father every holiday and all summer. Judge Beaudet has sent my children to a foreign country with no return date and has given their father two years to figure out his situation and hopefully, return to the United States. There is nothing preventing Daniel from entering the United States as a visitor and he was welcome to re apply for his O-1 Visa. I am heartbroken and at a loss as to why a non-US citizen is being so heavily rewarded by Judge Beaudet.”

As a mother myself and someone who has been embroiled in my own tumultuous 4-year custody battle, this case has me on edge because it is yet another reminder that someone behind a bench can make a decision that is clearly not in the best interest of a child. There seems to be zero accountability in the Family Court System and sadly, these decisions are being made at the expense of the children. I recently spoke to Chelsea Storey, Family Law Attorney in Orange County, California, for her opinion on the Rutherford- Giersch case.

"The fact that these children who have birthright citizenship and therefore a legal right to live in America have been ordered to live in a foreign country is extremely troublesome and sheds light on a myriad of other problems in the family court system.

In an overreaching decision that ensured a father, who had been deported for suspicion of illegal activity, had equal time with his children, the children have been ripped away from their mother, their primary attachment figure.

Using the erroneous premise that Ms. Rutherford can travel at will to see her children in a foreign country and that Mr. Giersch, due to his deportation cannot, the judge completely disregarded other “best interest” factors.

Equal parenting time does not automatically guarantee children’s “best interest.”

With the over correction and abolishment of the "tender years doctrine," which maintained that young children should remain with their primary attachment figure to reduce separation anxiety and developmental problems, children’s actual psychological needs are being ignored by decision makers. 

"The ‘best interest’ standard should always consider and incorporate psychological and emotional needs of the children.  In this case it appears these important principles were ignored to advance an agenda.”

In an effort to empathize with the struggles of others, I often try to imagine myself walking in their shoes. As I put my children to bed tonight, I could not bring myself to try on Kelly Rutherford’s shoes. My heart aches at the thought of these two small children sleeping in a country that is completely foreign to them, not to mention 4,000 miles away from their mother. The Family Court System has the responsibility to act in the best interest of the child. As someone who grew up without a mother, I know the toll that Judge Teresa Beaudet’s decision will have on these children and I can say beyond a shadow of a doubt that the ruling is not in their best interest.

Tina Swithin is the Author of “Divorcing a Narcissist: One Mom’s Battle” and the popular blog, “One Mom’s Battle”. Tina is also the newest contributor to the Huffington Post and enjoys helping women (and men) to feel empowered when going through a high-conflict divorce. Her Facebook page has become a source of education and camaraderie for those going through a divorce with a narcissist. Her ultimate dream is to create a non-profit agency with the goal of educating and bringing change to the Family Court System. She is an active family and child advocate. Tina is a contributing expert at HopeAfterDivorce.org, DivorceSupportCenter.com, FamilyShare.com, CupidsPulse.com, and LAFamily.com.Tina resides in sunny California with her new husband, two daughters and three-legged tortoise named, “Oliver” You can follow Tina on Twitter @onemomsbattle.