Kelly Rutherford Gets 100,000 Signatures on Petition to Bring Her Kids Back to the U.S. – But Can She Succeed?
The actress has gotten the White House's attention, but that doesn't mean there's an easy road ahead in her fight for custody
Kelly Rutherford may be one step closer to bringing her children home.
The actress’s online We the People petition asking for the government to intervene in her six-year custody case reached the 100,000 mark Wednesday – meaning the White House will review her request and issue a response.
“I feel so blessed to have so much support for me and my children,” Rutherford tells PEOPLE. “I am optimistic that the Obama administration will step in and rescue my children now.”
The Gossip Girl star say she’s grateful to the celebrities who have rallied around her cause on social media.
Created on April 28, the petition calls for a federal order allowing her son Hermes, 8, and Helena, 5, to move to the United States. They’ve been living with their father, German businessman Daniel Giersch, in France and Monaco since 2012, when a California judge ruled that because his work visa had been revoked, the children would reside with him, and Rutherford would fly back and forth for visits.
A source told PEOPLE in 2012 that Rutherford was responsible for keeping her ex out of the country after she reported him for allegedly dealing drugs and illegal weapons – charges she staunchly denies.
Rutherford says in their custody agreement, the judge told Giersch to reapply for his visa. A State Department spokesperson confirms they have not received a visa application from him.
Does Rutherford’s petition have a shot? The State Department spokesperson could not comment on her case due to privacy concerns but suggested U.S. intervention would be unlikely.
“In general, the Department of State does not have the authority to enforce U.S. laws in other countries,” the spokesperson tells PEOPLE. “The Department stands ready to provide all appropriate consular services to U.S. citizens in foreign countries.”
Rutherford’s attorney, Wendy Murphy, has told PEOPLE she plans to keep filing appeals all the way up to the Supreme Court. She argues that by sending Hermes and Helena to live in France, the California family court judge violated their constitutional rights as American citizens to live in their own country.
“How on earth can two utterly innocent and defenseless American children be shipped like luggage to live in a foreign country?” she said.
But a family lawyer not involved in the dispute tells PEOPLE that Rutherford would stand a better chance in the international legal system.
Nancy Chemtob, who specializes in divorce and custody battles at New York firm Chemtob Moss & Forman, says Rutherford should file what she calls a “relocation plea” based on the rules set forth by the Hague Convention, an agreement among more than 90 nations to protect the interests of children, usually with regards to adoption.
“The proper way to do this is to file a relocation plea that the children relocate to the United States for the following reasons: She’s a better parent, she’s the primary parent, they would be better educated here. Whatever the reason is,” she says. “What I do all the time is what we call relocation cases, so for her to get this petition from the White House, to me it’s illogical. It’s not the proper procedure that’s in place.”
Chemtob acknowledges the petition is a powerful “public cry.” Still, she says fighting for the children on constitutional grounds would likely not sway a judge – especially since this is not a kidnapping case and Giersch was granted custody by an American court.
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“If she were my client, I would say, ‘Okay, so your children are living in Europe for x amount of time. Tell me why it’s no longer in their best interest to live in Europe?’ ” she says. “When you talk about the Constitution, the laws in the United States, as well as most of the countries, recognize the children’s rights, and really the children are considered wards of the state, so their rights are more important than parents’ rights. Children have an incredible amount of rights. So that’s why the Constitution really isn’t the best argument.”
“She would have to prove that the children should reside with her in the United States because this is a relocation case, under the Hague Convention she’s asking that the children be returned from one country to another country,” she adds, listing hypothetical examples. “She’s the better parent, the parental rights of the children would be best served, she can take care of their day-to-day needs, that they’ve been residing in Europe and that they’re not thriving, he’s not sending them to school. She would have to have a good faith basis – it’s a custody case – as to why she would be the better custodial parent now.”
But Rutherford could possibly prove just that: She has told PEOPLE that Giersch is threatening not to fly the children for a visit to the United States ever again, as he agreed to back in 2012.
If true, Chemtob says, that may be the loophole she needs.
“She can make an application to the court in the United States for a change in circumstances that wasn’t contemplated at the time that she lost the trial,” Chemtob explains. “[Rutherford could argue] that the judge and everybody assumed that he would allow her access to the children on a regular and consistent basis, and that he’s failing to meet that obligation, which would be alienation of the children. That would be a new reason to start a new trial that she should be deemed the custodial parent and the children should live here.”
Giersch has not commented on the case or his ex-wives claims.
“Daniel Giersch continues to protect the children from any negativity, ” his lawyer previously told PEOPLE, “and therefore will continue to not engage in any of these unfortunate and false media fabrications which only serve one person but clearly not the children.”