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October 14, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Continued from Monday.

In order to obscure Rutherford’s three-year campaign of trying to keep Giersch out of their children’s lives, the Vanity Fair article naturally seeks to direct readers’ attention elsewhere (Vanity Fair, 11/2015). After all, Judge Teresa Beaudet’s Statement of Decision is damning of Rutherford almost from start to finish. And of course all those facts recited in that Statement were found by the judge to be true after many hearings at which Rutherford, Giersch and many others, gave testimony under oath.

Sarah Weller, by contrast does her best to smear Giersch, not with judicially-established facts, but the unsupported statements, made out of court by Rutherford and her friends and relatives. Giersch has long refused to talk to the news media about his case for what should be obvious reasons; he’s a good parent, he’s prevailed in the case and therefore has nothing to gain and much to lose by involving himself in tit-for-tat arguments in rags like People and TMZ. But of course his refusal allows people like Weller to simply channel Rutherford’s claims uncontradicted.

So, from Vanity Fair, we learn that, according to Rutherford’s half-brother, Giersch “seemed very, very cold and calculated.” Rutherford claims that he was “very subtly verbally abusive,” and that “he was trying to alienate me from everyone in my life—my parents, my brother.” A private investigator hired by Rutherford’s lawyers is quoted as saying that Giersch “seems to have made a good living suing people.” (Giersch’s company invests in intellectual property like patents, trademarks, copyrights, etc. Protecting infringement via lawsuits is obviously necessary at times.) One of Rutherford’s 10 lawyers said that Giersch had been “less than cooperative” in a deposition. Gasp!

And then there are the claims by Rutherford, cited by Weller, that fall somewhere between misleading and outright false. For example,

[E]xcept for rare vacation time when the children are allowed to come to New York, the years of the [Gossip Girl] show were the last they were able to live with her.

“Rare vacation time?” No, actually, Rutherford gets the kids almost all summer, plus five vacation times throughout the year, plus times that Giersch has allowed her to see them outside of the visitation times ordered by the judge. And,

“Daniel made me go through a custody evaluation while I was pregnant.”

No, that would be the family court judge in the case that Rutherford had filed. Giersch didn’t sue her for divorce, she sued him. There were children involved and, when custody is contested, often one or more custody evaluations is conducted by court-appointed evaluators. But Weller is so desperate to tar Giersch that she’s willing to pretend, along with Rutherford, that in some way, a court-ordered custody evaluation was (a) Giersch’s doing and (b) abusive. Both are nonsense.

But while we’re on the subject of the divorce and custody case, readers may want to get an idea of how Rutherford’s conducted herself in that regard. After all, Weller wants us to believe that Giersch has been an abusive litigant toward his ex. But as usual with her scurrilous piece, the opposite is true. Judge Beaudet makes it clear who the party has been who’s tried to browbeat the other using the courts as her weapon:

- Although three custody evaluators recommended that the parties share joint legal custody, Kelly has consistently advocated for and requested sole legal custody or versions thereof.

- In contrast, Daniel has consistently advocated for a collaborative co-parenting relationship wherein both parties would exercise joint legal and physical custody.

- Kelly filed a Petition for Dissolution of Marriage in December 2008 requesting that Daniel have "monitored" visitation of Hermes.

That last makes this statement by Rutherford, that Weller quotes without question, apparently an outright lie:

In December 2008, when she was three months pregnant with Helena, Rutherford initiated divorce proceedings, citing “irreconcilable differences.” “I didn’t want any money from Daniel,” she says. “I wanted us both to be great parents. I wasn’t asking for full custody”—rather, 50-50 legal custody, with her as the primary residential parent.

Either Judge Beaudet, who had access to all the legal filings in the case, is lying, or Rutherford is. I think I can guess which it is. Now back to Rutherford’s use of the courts against Giersch.

- Kelly has filed twelve [Order to Show Cause]/Motions to try to reduce Daniel's time and role in the children's lives, while, until his relocation request in January 2012 (which was filed the month following Mr. Kelly's actions and the revocation of Daniel's Visa), Daniel had filed just one OSC/Motion, on September 24, 2009, directly in response to Kelly's September 24, 2009 ex parte application.

- In 2009, Dr. Strachan performed a custody evaluation in which he recommended an equal 2/2/3 schedule for the parties with Hermes. On July 16, 2010, Kelly brought an ex parte application to reduce Daniel's custodial time with Hermes to daytime custody only (no overnights). The application was denied by the Court.

- At trial on December 2, 2010, Kelly continued to advocate Daniel having less than equal custody of Hermes. In so doing, Kelly rejected many proposals made by Daniel whichwould have given both parties quality time with Hermes. The Court ordered that Hermes be with Daniel during all weekends (except the 2nd and alternating 5th weekends) as well as all Wednesdays and overnight to Thursday mornings. In February 2011, Kelly attempted to change that order, stating that Daniel had the majority of Hermes' quality time under the December 2, 2010 order.

- On January 6, 2011, Kelly brought an ex parte request to reduce Daniel's time with Helena. The request was denied.

- On October 31, 2011, Kelly brought an ex parte request again to try to reduce Daniel's custody of both children. The Court denied the ex parte request and set it for hearing for December 12, 2011.

It goes on and on. Suffice it to say that this is the woman who wants us to believe that she’s always just wanted 50/50 parenting time with her ex. She’s the same woman who allowed her lawyer to have Giersch deported in an attempt to limit his parenting time to zero. She’s the same woman who simply abducted her kids at the end of their summer stay with her this year. She’s the same woman whom the judge cites as lying under oath at least twice during the course of the custody proceedings. And yes, this is the woman Weller believes without question. Amazing.

Now, what observant readers will have noticed is that, regardless of the truth or falsity of Rutherford’s attempts to smear Giersch (and we’re dealing with a woman who seems to have told her kids that their father is a dealer in illegal arms and drugs, despite the fact that there’s no evidence for his doing either), none of them has the slightest thing to do with his fitness as a parent.

Weller’s one claim about that is the uncorroborated statement of one Layla Lisiewski, not admitted into evidence that, once when the children were in Giersch’s care, Helena fell into the swimming pool without her water wings on. Weller says Giersch “didn’t deny the incident,” which may or may not mean he was ever asked about it under oath. But in any case, Judge Beaudet regarded Lisiewski’s statement as unimportant enough to not even include in her Statement of Decision.

So, how did Giersch’s behavior compare to Rutherford’s continual efforts to come between him and his children? Does he facilitate the kids’ relationship with Rutherford? Here’s what Beaudet had to say on that topic.

- Daniel has demonstrated a pattern of being facilitative. Dr. Aloia testified that he did not find a single incident of conduct by Daniel intended to interfere with Kelly's relationship with the children. Dr. Aloia further stated in his evaluation report which was admitted into evidence at the time of trial:

[B]ased on all data available to me in this evaluation, including a review of the voluminous pleadings, transcripts, declarations, court orders, emails between the parties, and interview data, I find that Mr. Giersch's intention in this matter has been to collaboratively parent the children with Ms. Rutherford, establish and maintain an equally shared schedule of physical custody with both parents living in close proximity to each other, and provide timely and respectful communication to inform Ms. Rutherford of important events and circumstances regarding the children's experiences with him, and collaboratively manage situational changes in their parenting plan.

(Aloia report, pp. 81-82)

 - The emails and other evidence of communication between the parties reflects Daniel's intention of continually trying to be a collaborative parent with Kelly and to establish and maintain an equally shared schedule of physical custody with both parents.

- The emails and other evidence of communication between the parties reflects that Daniel provides timely and respectful communication to Kelly to inform her of important events and circumstances regarding the children's experiences with him, and his efforts to collaboratively manage situational changes in their parenting plan.

- Since the children have been with Daniel in France since May 2012, Daniel has facilitated Skype communication for Kelly with the children, and has continued to proactively communicate with Kelly, including sending photos and videos of the children's activities and providing timely information to Kelly concerning Hermes' dental treatment.

- Daniel's emails to Kelly are proactive. Daniel's emails reflect that he is consistent in trying to obtain information from Kelly, and trying to be flexible and accommodate situational changes and Kelly's schedule.

- Daniel has taken action to involve Kelly in the children's activities. For example, for Helena's birthday party, he bought a present from Kelly for Helena, which was described as the biggest gift she had, with the word "Mama" written on it in big letters because Helena recognized those letters as meaning "Mama."

- Daniel accommodated Kelly's trip to France on July 23, 2012 by providing her with the full ten days of custodial time she requested despite there being no court order therefor.

In other words, Giersch has always played by the rules of sensible, cooperative, collaborative shared parenting. As badly as Rutherford has treated him and their children over the years, he’s always kept his eye on the prize – the well-being of the kids.

And that, as we’ll learn tomorrow, is exactly what Weller opposes.

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