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December 30, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Daniel Giersch is suing Vanity Fair magazine for defamation of character, and I’d say it’s high time too (New York Daily News, 12/28/15).  Kelly Rutherford’s former husband has already filed suit in a German court and gotten a restraining order against VF within that country’s jurisdiction.  Plus, he’s promising more of the same.  My guess is that People, TMZ and similar shoddy publications are near the top of his lawyers’ list.

The Vanity Fair piece on the Rutherford/Giersch divorce and custody case was so bad it took me four posts, here, here, here and here — to deal with it.  Put simply, it utterly misrepresented Rutherford, her actions in the case and Giersch.  The writer, Sheila Weller, either hadn’t read California Judge Theresa Beaudet’s Statement of Decision in the case or elected to ignore it and every judicially-found fact in it.  Either way, her piece failed as anything that might be charitably called “journalism.”

Maybe Giersch reads the National Parents Organization blog.  Back last October, when the VF article came out online, I pointed out in no uncertain terms how Weller simply channeled Rutherford’s claims about Giersch and everything in the case without consulting either Giersch, his lawyers or, most importantly, Beaudet’s decision.  My reference to VF’s “Smear” of Giersch was a none-too-subtle message that the magazine should be sued.  Now he’s doing just that.  Good for him.

Throughout the case, Giersch and his lawyers remained mostly mum on the goings-on.  That was obviously a calculated strategy that worked.  Rutherford was always the bad actor and it would have accomplished little positive if Giersch had run to the press as often as she did.  Essentially, Rutherford had little or nothing to recommend her over him as the custodial parent, so she took her case to the news media that specialize in the tawdry lives of pretty people.

They were more than happy to oblige, providing their readers with astonishingly trivial details of every “Gossip Girl” sighting.  And with Giersch ‘no-commenting,’ the likes of People, TMZ and RadarOnline fell easily into simply parroting Rutherford’s self-serving and often outright false claims.

The case dragged on for five years, near the end of which, VF got into the act.  Now, a writer, her editors and their publisher with even a modicum of sense would, by that time, have at least looked at Judge Beaudet’s Statement of Decision.  Failing that, they’d have noticed that, at every turn of the case, Kelly Rutherford lost.  Or maybe they’d have even noticed that she violated a court order and kept her two kids with her in New York when she was legally bound to send them back to Monaco where their dad lived.

Had they done any of those things, the idea might have occurred to them that there were reasons why courts had selected Giersch as the primary parent and not Rutherford.  In other words, they could have done basic Journalism 101 and checked for facts beyond one interested party’s say-so.  If that proved to be more than they could handle, they could have used basic common sense.  They did neither.  Now they’ll get to explain themselves in a German court.  I’m guessing the case won’t go well for Vanity Fair.

I don’t know the law of slander, libel and defamation in Germany.  But I do know that Weller’s piece routinely made false and misleading statements about the case and Giersch.  Now, most of those were made by Rutherford, but that hardly absolves the magazine of doing basic fact-checking.

With Giersch remaining silent, most of the article was about Rutherford, but Weller’s slipshod methods didn’t stop.  Time after time, she simply allowed Rutherford to say things that have never been true without a balancing quotation or reference to Beaudet’s Statement.

So, although Rutherford wasn’t always denigrating Giersch in her remarks, Weller’s utter failure to question her should be admissible as evidence.  That’s because it demonstrates not only her bias in favor of Rutherford and against Giersch, but it tends to prove an intention to smear the German businessman.  In short, pretty much the whole article exhibits either its own falsity or an anti-Giersch animus on the part of the writer.

And that, my friends, adds up to a win for Giersch.  I’d put good money on it.

Now, the rest of the reporting on the case by other magazines and newspapers hasn’t been as bad as the VF piece.  But again and again, those articles got basic facts wrong and all but invariably portrayed Giersch as a villain and Rutherford as an innocent victim of a family court that, for reasons never explained, had it in for poor Kelly.

Giersch is going after them too.  Again, good for him.

My guess is that he’s been planning this for some time.  After all, the custody case was just decided once and for all by a court in Monaco last month.  Giersch obviously wanted to finalize that case before moving on to his defamation suits.  To have brought the civil suits while the custody case was in progress would have been to court allegations of attempting to manipulate the latter with the former.  So he waited, and wisely so.

Oddly, the Daily News article that reported on Giersch’s suit against VF and his intention to sue other publications seems not to have gotten the message.  The message Giersch is sending is that the news media need to start telling the truth about him and the case. 

So what does the News do?  Well, it doesn’t lie outright, so it steers clear of a lawsuit, but the writer, Nancy Dillon, still seems not to have done basic due diligence like reading Judge Beaudet’s decision.

Rutherford’s battle with Giersch has been widely reported as a nightmare involving two U.S.-born kids sent to live with their dad in a foreign country by a California judge who initially said the situation would be temporary.

That judge eventually moved on from the case, and when Rutherford asked the court to step in again earlier this year, a new judge said California no longer had jurisdiction because the kids were living in Monaco and Rutherford was living in New York.

Rutherford argued that she only lived in New York to be closer to the kids for frequent visits, but it didn’t persuade the court.

Once the new California judge gave up control with a ruling over the summer, the desperate mom tried but failed to get a New York judge to intervene.

With no state court willing to hear her claims that Giersch was acting unfairly, Rutherford took a gamble last August and refused to send the kids back to Monaco as planned after a five week summer vacation in Manhattan.

The move backfired, and a Monaco judge reportedly handed full custody to Giersch earlier this month, giving Rutherford only limited visitation in Monaco and France.

This of course misrepresents what happened.  It suggests that the “desperate mom” only lost primary custody because the U.S. courts gave up jurisdiction over children who lived thousands of miles away.  That is not true.  Rutherford lost her attempt to deprive Giersch of contact with his kids two years ago by order of Judge Beaudet in California.  That had nothing to do with her retention of the children in New York last July.

The court in Monaco surely took that violation into consideration, but basically, primary custody was decided in 2012 and made permanent in 2013.  The court in Monaco refused to disturb that arrangement, doubtless because it saw that the children’s best interests required them to remain with their dad.

Odd as it may seem, the Daily News, like all the other news organizations before it, just doesn’t get it.  Kelly Rutherford lost her bid for primary custody because she tried to keep their father out of her children’s lives.  Multiple courts have found that to be antithetical to the children’s interests as indeed it is.  It’s as simple as that.

If the Daily News piece is any indication, even when they’re on notice that Daniel Giersch will sue them for defamation, the news media are still unable to stop misrepresenting the obvious and well-known facts of his custody case against Kelly Rutherford.


#childcustody, #KellyRutherford, #defamation, #VanityFair

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