When Child Custody Goes International

Hossein Berenji, Jun 07, 2015

Conflicts over child custody in a divorce are hard enough when the parties live near each other. When the separating spouses live primarily in two different countries, however, things can become much more complicated in a hurry. If you need help with child custody matters, call Berenji & Associates Divorce Lawyers today for a case evaluation.

Such was the case with actress Kelly Rutherford, whose two children were ordered to live in France with their father, Daniel Giersch, after the couple’s divorce in 2009. After an international legal battle lasting several years, a Los Angeles family court judge ordered the return of the two children to Rutherford late last month.

The Case of Kelly Rutherford

As international marriages become more common, Rutherford’s divorce is a case study in the complications that can arise out of international child custody. In 2009, Rutherford and Giersch entered divorce proceedings with the custody of their two young children being a major point of contention. The court eventually ruled to offer child custody to Giersch, who lived in France. The children moved there with him in 2012. He later moved to Monaco with the children, establishing them there as “habitual residents.”

Meanwhile, Rutherford claimed that she had been denied access to her children during a visit to Monaco. Her legal team also contended that Giersch’s efforts to establish permanent residency of the children in Monaco was in direct contradiction to California court orders to keep the children’s habitual residence in the United States. The court agreed, granting Rutherford full legal and physical custody on May 22 of this year.

Lessons of the Case

In this case, the primary focus was the concept of “habitual residence.” Enacted by the Hague Convention in 1980 to counteract the growing problem of international child abduction, the concept holds that children should continue to live in their country of primary residence before a divorce took place. There are no clearly defined terms of habitual residence, but it generally involves the following:

  • The historical locations and residences of the child
  • Where the child attends school or other activities
  • A location mutually agreed upon by the parents
  • Where the family settled prior to a divorce

If a child is wrongfully removed from his or her country of habitual residence, a parent may file a petition with their local jurisdiction to invoke the Hague Convention to bring the child back. To file this petition, the parent must first prove that the child was, in fact, a habitual resident of the country in question prior to a divorce. This was the route Rutherford successfully took with her case.

Obtaining Skilled Legal Representation

Questions of international law can involve multiple jurisdictions and often a lack of clearly defined legal precedent. If you are involved in an international child custody dispute, it is essential to speak to an experienced Los Angeles divorce lawyer about your case.

At Berenji & Associates Divorce Lawyers, we defend our clients in a range of divorce and family law cases, from divorce mediations to high profile contested cases. To speak to an attorney about your case, call today at 310-271-6290 or contact us online.

Berenji & Associates
9107 Wilshire Blvd #750
Beverly Hills, CA 90210
(310) 271-6290