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September 19th, 2012 by Robert Franklin, Esq.
I don’t like to write about celebrities.  From what I can gather, they’re among the tawdriest members of society and, when it comes to their familial squabbles, have little to teach us.  That’s because most celebrities have the money to hire lawyers to assert their rights in family courts.  A few hundred grand here or there is no big deal to many of the actors, singers, models, etc. that sully the pages of the news media every day.  So what happens in their divorce and custody cases has essentially no relationship to those of the less well-heeled, i.e. the 99%.

But Kelly Rutherford’s case does have something to teach us – how the media (like so many judges) can be utterly bamboozled by a woman’s tears.

As all too many of us know, Rutherford is fighting with ex-boyfriend, German businessman Daniel Giersch, for custody of their two children, Hermes, 5, and Helena, 3.  A couple of weeks ago, the female judge in their case said the children should live with Giersch in France half the time and with Rutherford half the time, i.e. 50-50 custody.  Rutherford’s response to that was to very publicly get the vapors.  For at least a week after the judge’s ruling, Rutherford was all over the news, appearing on every television show and in every article that would have her.  Her appearance on the daytime talk show The View was particularly obnoxious.  She wept, she played the victim, Whoopi Goldberg brought her tissues.  I hope someone had smelling salts.  Rutherford did everything but swoon.

Apparently thanks to her theatrics, for two weeks everyone totally forgot about the facts of the case.  Soon articles were proclaiming, as Rutherford had, that she’d “lost custody” to her ex.  That’s utterly untrue of course, but, when there’s a maiden in distress, a lot of people neglect to ask “why?”  After all, as I pointed out in my first piece on the subject, what the judge gave Rutherford – 50% custody – would cause any father to fall on his knees and thank divine providence for his good fortune.  Only in a culture that presumes sole maternal custody could 50% parenting time be called “losing” custody.

But the media’s willingness to swallow whatever bait Rutherford dangled before them went further than the simple presumption of maternal custody.  No, it’s becoming apparent that the reason the judge issued a 50-50 order is Rutherford’s persistent attempts at alienating the children from Giersch and her utter refusal to co-parent with him.  Worse still, some reports say that it was Rutherford who was responsible for getting Giersch’s visa revoked by alleging that he’s a running drugs and arms into South Africa.  The sources for that are anonymous, but someone got his visa revoked, and it just so happens to have occurred during their bitter battle over custody.  It wouldn’t be the first time a mother had falsely accused a father of criminal behavior for the sole purpose of depriving his children of his love and protection.

I suppose we’ll eventually find out the facts about Rutherford and Giersch, but for now, the press may finally be recovering from its bout of pro-mother/anti-fact coverage of their custody case.  This article quotes a veteran New York family lawyer, Malcolm Taub, to the effect that the judge wasn’t very happy with Rutherford precisely because of her attempts to cut Giersch out of his children’s lives despite court orders to the contrary (Hollywood Life, 9/18/12).

“Family court judges don’t want one parent to try and alienate kids from the other parent. One of the characteristics of being a good parent is promoting a relationship with the other parent,” explains Taub.

In the judges decision, the judge chose to make Kelly’s ex husband the “residential parent” because “Daniel facilitated the relationship of the children with Kelly… and Kelly simply has not done so,” reports TMZ.

The judge cited the example of Kelly repeatedly failing to put Giersch’s name on their daughter’s birth certificate, despite being asked several times by the court, TMZ writes.

The situation now puts Kelly in a tough position believes Taub. “Unless there is egregious evidence, a court will not overturn the order right now,” he says. However, he does think there is hope that Kelly may be able to regain custody of her little ones in the future.

“The fact that there’s a ruling doesn’t mean its written in stone. Her best option is to stop appearing in the media, keep a low profile, show contrition, demonstrate that she’s a loving, caring mom and stop knocking her ex on TV. The TV audience doesn’t have a vote,” he points out.

He also urges her to try and improve her relationship with her ex. “A lot of time when people calm now, they come to arrangements which work for them,” he advises.

That’s all good advice.  Too bad it took the news media two weeks to calm down and listen.

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