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Bar Association of San Francisco Member Benefits: Publications

Family Law Corner: Custody Battle, Visas and Gossip, Oh My!


By Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna


Kelly Rutherford of “Gossip Girl” fame has been involved in a contentious divorce and custody battle with her now ex-husband, Daniel Giersch, for the last three years. During this battle, Rutherford has sought a restraining order and admitted that she hired a private investigator to spy on Giersch’s parenting.
At the end of August, the case took an interesting turn when a California Superior Court judge ordered that the children would remain with Giersch in France for school, making Giersch the residential parent. However, the court also gave the parents a 50/50 timeshare. Rutherford has indicated that she intends to appeal the decision.

It appears the Judge was faced with relocation requests from both parents. The court’s order has been made available online. Rutherford was trying to move the children to New York, while Giersch was trying to move to France.

A relocation or move away request in California is governed by two main cases, In Re Marriage of Burgess (1996) 13 Cal.4th 25 and In Re Marriage of LaMusga (2004) 32 Cal.4th 1072. Under Burgess, where the parents are exercising joint physical custody, then the court must look at what is in the children’s best interests. Rutherford and Giersch were exercising joint custody and the court stated it was applying the best interests standard to its determination. While the court may consider many factors in making its determination, LaMusga makes clear one factor should be whether the proposed move is being made in good faith or to block the other parent’s access. Similarly, other cases have described the importance of ensuring that the moving parent will not try to limit custody or visitation for the non-moving parent. (In Re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454).

The Rutherford-Giersch order makes clear that the judge believes Rutherford has been trying to cut Giersch out of the children’s lives and that she has not demonstrated a commitment to changing that behavior. For example, after numerous orders of the court, Rutherford had still not put Giersch on the birth certificate of their three-year-old daughter. While the court order is vague about the circumstances leading to Giersch residing in France, TMZ and other gossip sites have stated that Rutherford’s accusations in the court records lead to Giersch having his visa revoked. With no visa, Giersch may not return to the United States forcing his relocation request. The court did order that Rutherford assist Giersch in getting a visa which may mean she had some role in it being revoked.

The court also considered the flexibility of Rutherford’s work situation (“Gossip Girl” is entering its final season) and the fact that Giersch offered to pay for Rutherford’s flights, car and housing while in France.


Sarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.

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