October 12, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Continued from Sunday.
As I described yesterday, in the middle of the custody battle, Kelly Rutherford’s lawyer, Matthew Rich did a highly unethical and telling thing. He tried to get her ex, Daniel Giersch arrested and/or deported due to an alleged visa violation. He then attempted to get Giersch to sign a Stipulation that would allow him no parenting time with his children, Hermes and Helena. He suggested that, if Giersch signed the document, he’d call off the State Department. (The latter looks much like witness tampering by Rich.) And of course Rutherford knew what Rich was doing and why, but never moved to stop him.
In her Vanity Fair article, Weller calls the incident “pivotal.” Outrageous, it certainly was, but in no way was it pivotal to the outcome of the case. In fact, its sole importance was that it was part of a pattern of behavior on Rutherford’s part. From before the day their second child was born, Rutherford consistently tried to shut him out of the children’s lives. Obviously, having him deported or, in the alternative, having him agree to have zero parenting time with the kids was part of that pattern. Judge Beaudet’s order is entirely clear on the subject.
Even if it could be shown that there might have been other reasons that contributed to the revocation of Daniel's Visa, or that Mr. Rich's conduct was not the only cause of Daniel's Visa being revoked, it would not negate the significance of the conduct of Kelly and her attorney. As the Court previously found and held in its February 17, 2012 Order, the relevance of such conduct is what such conduct signifies regarding the custodial issues and whether Kelly would be likely to facilitate the children's relationship with Daniel; the Court finds that this conduct supports the conclusion that she would not be likely to do so.
Yes, a minor matter that barely gets a passing reference in Weller’s article is that of California law on who should get custody of children. One of the factors courts are required to consider is whether a parent is likely to facilitate contact between the child and the other parent. Judge Beaudet found that Giersch had - and would continue - to do exactly that. Rutherford was a different story.
Her acquiescence in Rich’s behavior was but one aspect of what Beaudet referred to as “Kelly’s three-year pattern of not facilitating Daniel’s relationship with the children.” The judge’s Statement of Decision goes on to itemize some 20 different instances in which Rutherford interfered with Giersch’s relationship with his children. And of course, since the Statement was signed on October 24, 2013, it didn’t include Rutherford’s frank, public refusal to return the children to Giersch’s custody at the end of their summer with her this year. That was more of the same.
Here’s a partial list of Rutherford’s efforts to interfere with Giersch’s relationship with Hermes and Helena:
- She refused to put his name on Helena’s birth certificate as her father. She promised the court she would do so, but still refused. The court ordered her to do so, but, as of the date of the Statement of Decision, she still hadn’t done so.
- Before Helena was even born, Rutherford filed suit against him opposing equal custody and claiming that Giersch’s swimming pool represented a danger to the children. The court-appointed attorney for the children found her allegation to be meritless.
- Despite his desire to be at the hospital for Helena’s birth, Rutherford refused him permission and refused to tell him when the birth would be. Rutherford admitted those facts to one of the custody evaluators in the case, and then lied about it under oath on July 20, 2012.
- In the months following Helena’s birth, Rutherford prevented Giersch’s access to both his children for 35 days.
- Rutherford informed the news media that she intended to raise the children alone.
- Without any evidence to support her, Rutherford claimed that Giersch trafficked illegal arms and drugs.
- In 2010, she placed her telephone number in Hermes’ shoe and told him that, if he were ever in an airport with Giersch, he should scream and call the police.
- Two custody evaluators in the case found that Rutherford engaged in maternal gatekeeping and that her allegations of danger while the kids were in Giersch’s care were “red herrings.”
- As is usually the case, the court appointed an attorney to represent the interests of Hermes and Helena. But Rutherford attempted to “block his communication and access to information from Hermes’ two teachers, his therapist and his tutor.”
Again, that’s just a partial list. So what does Weller have to say about Rutherford’s three-year pattern of trying to remove Giersch from his children’s lives? Precious little.
It was a very difficult labor, and Giersch, Rutherford says, requested to be in the delivery room. Feeling vulnerable and upset, Rutherford says, she refused.
This is false. The judge specifically found that Giersch asked to be at the hospital, not in the delivery room. It says so in black and white. Did Weller even read the Statement of Decision?
Although she listed the baby’s name on the birth certificate as “Helena Giersch,” she left the “father” field blank. She says she feared that, with his name on the birth certificate, he could take Helena out of the country without her knowledge.
Not a word from Weller about Rutherford’s repeated promises to put his name on the birth certificate, nor the court order requiring her to do so, nor her lie about the matter under oath.
Giersch and Hallin vigorously seized upon the possibility of Rutherford’s excessive “gatekeeping.”
No mention of the fact that two separate court-appointed custody evaluators “seized on” the same thing.
Rutherford claims, “I have not spoken negatively about him.”
And yet Judge Beaudet explicitly found that she’d done exactly that, calling him a dealer in illegal arms and drugs.
And that’s pretty much it. Nowhere does Weller even mention Beaudet’s finding of a three-year pattern of refusing to facilitate the children’s relationship with their father. And the major aspects of that pattern are ignored altogether. I can see why. Weller’s going to bat for custody for a mother who’s very publicly done everything in her power to keep a fine father out of the lives of his children, and that’s not easy. So of course she ignores all the reasons why the judge’s decision is not only the right one, but the only one that could have been rendered. With Giersch stuck abroad and an alienating mother in the U.S., she crafted the most sensible order she could.
But for some reason, for essentially everyone writing on the case, including Weller, the clear facts relating to the children’s best interests must be sidelined in order to turn the children over to Rutherford.
But perhaps, badly as Rutherford has behaved, could it be that Giersch is a bad parent? I’ll answer that one next time.
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