Judge Confirms Courts Are Hopelessly Broken
A court in Monaco is the latest to deny Kelly Rutherford’s children a normal relationship with their mother, their primary attachment figure. The court gave the abusive father, Daniel Giersch, custody of the children and limited the mother to visitation in Monaco or France.
Kelly Rutherford is involved in an all- too- common custody case. The circumstances would suggest the court had an easy decision; maintain custody with the mother. But the court instead reached a decision that defies logic and clearly places the children in jeopardy.
Kelly is the primary attachment figure for the children, and there is no dispute always provided excellent care for them. The intent of the parties was to share custody, but the father did something resulting in his visa being suspended, so he is not permitted in the United States. It seems obvious to give the mother custody and work on arrangements for the father to have regular contact with the children. Instead, the California judge forced the children to leave their home and their country to live in a foreign land so that the father could have custody. Kelly was forced to travel to Europe if she wanted to see her children.
Whose Best Interest Are the Courts Protecting?
One of the criticisms of the “best interest of the child” standard is that it permits judges to make entirely subjective decisions. From any objective standard, the best interests of the children would be clear.
Kelly is the primary attachment figure for the children. This means that the order forcing the children to live in Europe and thus limiting their time with their mother increases their risk for depression, low self-esteem and suicide when older.
Courts often focus on the issue of continuity because it reduces the adjustments the children are required to make when they are already adjusting to the separation of their parents. The children had lived their entire lives in the United States and with their mother.
The ACE (Adverse Childhood Experiences) Research includes ten harmful experiences that have been shown to reduce life expectancy and cause health and safety problems throughout the children’s lives. Taking a parent out of the children’s lives is one of the ACEs. Until the father gained approval to return to the United States, no arrangement could prevent the children from having limited contact with one of their parents. While the original court order required the father to make every effort to restore his visa, there was no penalty for his failure to even try, and the order giving him complete control provided an incentive to refuse to resolve his visa situation.
Although Kelly refused to raise issues concerning verbal and emotional abuse or tactics involving litigation and economic abuse, there is good reason to believe the father engaged in at least these tactics. Domestic violence is one of the ACEs and it also constitutes emotional abuse of the children, which is another ACE. Accordingly, forcing the children to live with the abusive father increases their ACE score to at least 4, with serious health and other consequences.
There are reports that the California court sought to punish Kelly because her attorney reported information about the father to the US government. There are reports that the Monaco court sought to punish Kelly for keeping the children in the United States against one legal interpretation of the existing orders. She never hid the children and immediately complied with the federal court order. None of this has anything to do with the best interests of the children. Too often courts fail to consider that when they try to punish or retaliate against mothers they are really punishing the children.
Accordingly, any objective analysis of the best interests of the children would show that there are very substantial harms from taking custody from the mother and forcing the children to be deported, but no corresponding benefit that could possibly justify the extreme decision against the children.
The Best Interests of the Father
Dianne Bartlow interviewed some of the best judges for a chapter in the second volume of Domestic Violence, Abuse and Child Custody. Some of the judges stated they believed other judges maintained a bias in favor of fathers because so many other fathers abandon their children. The biased results and favoritism towards fathers as shown in the Kelly Rutherford case strongly support the judges’ concern.
Protective mothers report that many attorneys discourage or refuse to submit evidence of abuse. Many DV victims also refuse to raise claims of abuse because they are concerned the court will retaliate. This means the court practices that favor abusive fathers also serve to deny courts the information they need to protect children. Kelly did not raise any abuse issues both because she believed only physical abuse counted and out of concern for the court response. The truth is that mothers who raise their concerns about the father’s abuse and those who try to “play nice” both end up losing custody to their abusers. Interestingly, research shows that abusive fathers are more likely to win custody than safe fathers.
Many mothers debate whether to seek publicity in response to mistreatment from the court. Many abusive judges seek to create gag orders or otherwise discourage any media coverage. This allows the judges to continue to mistreat women and children without accountability. Many other mothers have been retaliated against for trying to expose the court failures. Kelly was in a unique position as a celebrity because she had access to the media that most mothers don’t. Earlier in the case, Kelly avoided publicity and canceled appearances including at the Battered Mothers Custody Conference based on legal advice that it might hurt her chances. Later she sought publicity and helped expose the broken system. But neither approach worked in the broken system.
Tremendous energy and emotion has been invested in deciding what approach to take in a DV custody case. While it can vary in individual cases, it is hard for children to win when the courts are really making decisions based on the best interests of the father.
If our children are to have any chance for a healthy, happy and successful life, the discussion and practices must change. This is why the Safe Child Act is so valuable. Children have a better chance when the discussion is about making their health and safety the first priority. Children have a better chance when courts are required to use a multi-disciplinary approach that would include experts in domestic violence and child sexual abuse. Children have a better chance when courts are required to integrate good scientific research like ACE and Saunders, and cannot use bogus theories like PAS. Kelly’s children just received pieces of coal as their Christmas gift from the judge in Monaco. Here at the Stop Abuse Campaign, we are working to save children from Adverse Childhood Experiences so we want to make the Safe Child Act our gift to the suffering children.