A New York Supreme Court judge has signed a writ of habeas corpus filed by the Gossip Girl star’s ex-husband Daniel Giersch, and she must appear in court with son Hermes, 8, and Helena, 6, on Tuesday, sources tell PEOPLE.
“The writ of habeas corpus is a quick way to get the U.S. court to recognize the Monaco court order and to enforce it,” Michael Stutman, head of the family group at Mishcon de Reya New York, tells PEOPLE. “My guess is that Mr. Giersch’s papers in support of his petition were very compelling, and the odds are these kids are going back to Monaco tomorrow night.”
Rutherford, 46, and Giersch, 41, have been caught up in a bitter custody battle since she filed for divorce in 2008. A California judge ordered the children to live with their father in Monaco temporarily in 2012 because his visa had been revoked, and they spend summers with their mother in New York. The actress has been trying to move them back to the United States but hit two roadblocks this summer when both California and New York family courts ruled they no longer have jurisdiction over the case. Per a Monaco court order, Rutherford was supposed to fly Hermes and Helena back to Europe on Thursday. Instead, she announced Friday that she’s keeping the kids.
“No state in this country is currently protecting my children. It also means that no state in this country currently requires me to send the children away,” she said in a statement. “Hence, I have decided that I cannot lawfully send my children away from the United States to live in a foreign country.”
It’s a risky tactic. “She’s certainly playing with fire, Stutman says. “And she’s essentially handing the children over to their father on a silver platter.”
Giersch, a German businessman, accused her of kidnapping. “Anyone associating themselves with Kelly and her abduction is violating the law,” his lawyer Fahi Takesh Hallin said in a statement Monday.
The United States and Monaco are signatories to the Hague Convention, an international agreement to protect the best interests of children. That means American judges have to respect Monaco’s arrangement, says Nancy Chemtob, a New York family and divorce attorney at Chemtob Moss & Forman in N.Y.C.
“She’s saying that, ‘Well, California said no, and New York said no, so there really is no judge overseeing my children in the United States, so therefore I don’t have to do anything because I’m not going to compelled to listen to a court in Monaco.’ And that’s not the way it works. Under the Hague Convention, she has to listen to the court and comply with court orders,” Chemtob tells PEOPLE. “I think she could lose custody for failing to comply with the court’s order.”
“We are aware of recent media reports of this case. We stand ready to provide all appropriate consular services,” a State Department spokesperson tells PEOPLE. “Due to privacy considerations, we have no further comment.”
So what will happen in court Tuesday? If she does not appear before the judge, a warrant could be issued for her arrest, Chemtob says, and she may be held in contempt of the court.
And even if she does bring the children to be transported back to Monaco, she could find herself with less access to her son and daughter.
“I would be surprised if she was allowed to take the children out of Monaco again without some level of security,” Stutman says. “What we do here, and I suspect they do there, is when someone is at risk of not returning the children, you make them post a bond or something of huge value to them, which they don’t get back until they return the kids, whether that’s money, whether that’s a passport. Maybe she won’t be able to travel with the children except one at a time, always having to leave a kid behind.”
“She’s really opening herself up to some pretty miserable consequences,” he adds. “Nobody likes someone who decides to take the law into their own hands.”
Attorney Robert Wallack represented Rutherford in federal court last year but is no longer on her legal team. Though he believes the original 2012 custody arrangement was flawed and that Rutherford deserves her day in court in New York, he calls her latest decision “an act of desperation.” He says he is worried it will do her more harm than good in Monaco, where there is a hearing set for Sept. 3.
“My fear for Kelly would be if they end up litigating in Monaco, and if Monaco keeps the case and Monaco decides custody or decides some type of visitation regime, that the courts there don’t allow the kids to leave in the future because there’s a concern about whether Kelly will return them or not,” he tells PEOPLE. “My concern is that she ends up with even less than she has now, if the current visitation and custody regime is upheld, that in the future she is not allowed to have them over here for these extended vacations, and that would be terrible.”
Although Rutherford disobeyed Monaco’s court order, her side counters that Giersch has not been complying with the 2012 one, which required him to re-apply for a visa (he hasn’t) and ultimately envisioned the family living in America together.
“If and when Daniel can return to the U.S., they will continue to share equal parenting time in the U.S.,” a 2013 statement of decision from the Superior Court of California in Los Angeles reads.
Plus, Rutherford was granted temporary sole custody in May by an L.A. judge after accusing Giersch of refusing to let her see the kids during a planned visit unless she turned over her U.S. passports. His objection to that emergency order is what set off the jurisdictional dispute this summer.
“Daniel is no angel, and he has on several occasions violated the original California court order by not re-applying for the visa and by, instead of lodging the California order in Monaco and obtaining a mirror order, he’s gone and applied for custody there and gotten a grant of custody there. So he’s disobeyed the California orders himself,” Wallack explains. “The courts will usually say two wrongs don’t make a right, and they don’t forgive someone for disobeying an order just because the other party has disobeyed orders himself.
“You’re certainly in better standing if you have clean hands, so the fact that Daniel has disobeyed orders I think helps Kelly, but it doesn’t erase what she’s done and what she’s doing. The last thing the courts want is a situation where either no one’s obeying any orders or you’ve got both parties picking and choosing which orders they want to abide by.”