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October 15, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Continued from Wednesday.

The question is “why?”

Why would a supposedly reputable magazine like Vanity Fair step into the Rutherford/Giersch child custody fight? Why especially would it step in at this late date? After all, the case is all but over; the children live most of the year with their father in Monaco and the chances of Judge Beaudet’s order being overturned by a court there seem slight at best. That’s particularly true given that Rutherford refused to return them to Giersch at the end of their summer stay with her this year. More than one commentator has pointed out just how impolitic a move that was on her part. And of course Hermes and Helena seem to be thriving in their father’s care, so a change of custody to Rutherford looks to be unlikely.

So why would Vanity Fair take up a case that’s basically complete? And of course, why would it take up the cause of a mother who’s behaved as badly – in public – as Rutherford has? Judge Beaudet’s Statement of Decision makes it abundantly clear that anyone taking Rutherford’s side is betting on a losing horse. Why go to bat for such a person?

Perhaps the case illustrates some point of law that needs airing, irrespective of the behavior of the parents involved. No. The only thing exceptional about this case is that the two parents are wealthier, higher-profile and more photogenic than 99.9% of divorcing parents. Again, the Statement of Decision in the case demonstrates that this is an altogether run-of-the-mill custody matter in which one parent resists the involvement of the other parent in the children’s lives and the other parent doesn’t. It’s really as simple and as non-earth-shattering as that. It’s just a case of which parent better facilitates the involvement of the other parent with the children.

And, whether that’s Vanity Fair’s point or not, it’s certainly Sarah Weller’s. Yes, when Weller gets down to cases, it’s that very legal requirement – facilitating the involvement by the other parent – that’s got her knickers in a knot.

That’s in part because she truly has little else to say. As I’ve said in my three previous pieces, the facts of the case, as found by the judge who heard the evidence, show clearly that, while both parents love their children, only one of them – Giersch – has behaved with the basic maturity required to make joint custody work. At every turn, Rutherford has done the opposite. And, as of ten weeks ago, she was still at it. That’s when she kept the children in New York, an act that was so obviously legally and morally wrong that a federal court had the children were on a plane to Europe within four days. Courts rarely act that quickly.

Weller’s attempts to, in some way, portray Rutherford as a victim of something other than her own desperate and misguided actions (and those of her lawyers) fall flat in the face of the court’s findings. The same holds true of her efforts to smear Giersch. So the only thing that’s left to her is to attack the law on which the judge’s decision was based.

One criterion explains why Rutherford lost her children: a parent’s impeding, or even wanting to impede, or even appearing to impede, the other parent’s access to their children. As Bernard Clair, a prominent Manhattan divorce attorney who has had numerous famous clients, explains it, having read Beaudet’s decision, “If you have a situation where, from the micro level—a refusal to put the dad’s name on the birth certificate—to the macro level—‘Let’s get him the hell out of the country!’—you find that one parent isn’t facilitating the children seeing the other, then that parent is dead in the water.”

Yes, that’s about the size of it. When both parents are fit and loving, but one attempts to deny all contact between the children and the other parent, that parent is likely to find herself out of favor with the judge and the law. So what does Weller find wrong with that legal precept?

Might it be time for what is sometimes called the “friendly parent” criterion to be jettisoned? Dorchen Leidholdt, the director of legal services at New York’s Sanctuary for Families, thinks so. “Truth be told, few parents engaged in a battle over custody are ‘friendly parents,’ ” she told me. According to Leidholdt, wielding this unreal yardstick—forcing mothers and fathers into “niceness” under penalty of loss of their kids—can mean that judges can all too easily overlook larger considerations, even questionably legal acts. She also suggests that this criterion can unfairly impact mothers, as they tend to be the primary caretaker during separation and divorce, and, as such, have more opportunities and inclination for proprietariness, protectiveness, and distrust, all of which can be used against them later in a custody battle.

Where to begin. First, “friendly parent” is just a layperson’s shorthand version for the law requiring parents not to thwart the relationship of the other parent with the kids. It has nothing to do with actually being friendly or nice. All it requires is that parents put aside their animosity long enough to make sure that the children aren’t caught in the middle of their adult squabbles. Yes, divorcing parents often are dramatically at odds with each other. But every serious person understands that, absent some serious danger or unfitness, children need both parents and no parent should unilaterally decide they don’t.

The legal yardstick isn’t “niceness,” it’s the best interests of children. Weller, of course, missed that concept.

The loss of their kids? In this case at least, no one’s lost their kids. Rutherford sees them almost enough to meet the 35% parenting time threshold required for kids to get the full benefit of shared parenting. For that reason, I’d argue that she should see them a bit more, but, unfortunately, the fact that she lives here and they can only live abroad makes that unlikely.

The reason “friendly parent” requirements have been written into so many states’ laws is that parental alienation has been recognized as a serious threat to children’s well-being when their parents divorce. The laws don’t use that term, but parents like Rutherford are alienators. They attempt to turn the children against the other parent and come between parent and child. Even a casual reading of the Statement of Decision in this case makes it clear that Rutherford was doing just that and, in the process, was caught in the legal net requiring parents to facilitate relationships with the children.

So that’s the “why” of Weller’s article. It’s an attack on courts and laws that recognize the reality of parental alienation and its serious and long-lasting detriments to children. Of course she might have considered finding a case in which she didn’t have to go to bat for an alienator like Rutherford, but my guess is that Vanity Fair published her piece at least as much because it features a pretty blond as because of its legal or journalistic merits which are dubious at best.

Attacks on the concept of parental alienation have fallen off very sharply since the DSM – V included it by other names. The simple truth is that there’s far too much evidence of parental alienation to overlook and it seems few people are even trying to do so anymore.

Like the rest of her article, Weller’s attempt to attack recognition of parental alienation is weak and misleading.

She also suggests that this criterion can unfairly impact mothers, as they tend to be the primary caretaker during separation and divorce, and, as such, have more opportunities and inclination for proprietariness, protectiveness, and distrust, all of which can be used against them later in a custody battle.

No, the reason the notion of parental alienation can impact mothers more than fathers is because mothers have more opportunity to alienate. About 83% of custodial parents in the U.S. are mothers and they typically have the kids between 80% and 86% of the time. PA is an opportunistic phenomenon, so, the greater the opportunity, the greater the likelihood a parent will try to alienate the children. But to say the idea “unfairly” impacts mothers is absurd. Don’t alienate and you won’t be called an alienator. Make sure you promote meaningful relationships between the children and the other parent and you’ll both comply with the law and do what’s best for your kids.

You know, behave more like Daniel Giersch and less like Kelly Rutherford.

Weller’s article is one of the worst I’ve seen in a while. It’s disgracefully slipshod in just about every respect. It defends indefensible behavior in order to attack a father who’s done nothing worse than get custody of his children. Far worse, it uses the same platform to attack shared parenting and children having meaningful relationships with both parents.

It’s far past time for us to stop seeing Kelly Rutherford’s face and hearing her pleas to get back children she sees so seldom due to her own alienating actions.

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#parentalalienation, #KellyRutherford, #childcustody

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