It's a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out," Nancy Chemtob, a New York family and divorce lawyer, tells PEOPLE
Three years after they moved abroad with their father, Kelly Rutherford‘s kids have been ordered to return to the U.S. for another round in her bitter custody battle with ex Daniel Giersch – but the fight is far from over.
Rutherford, 46, was granted sole legal and physical custody of son Hermes, 8, and daughter Helena, almost 6, on Friday so she can fly them back from Monaco for a California court hearing on June 15.
It’s a win for the former Gossip Girl star: In 2012,a judge decided that Hermes and Helena would live in Monaco and France with Giersch even though the couple shared joint custody because his visa had been revoked. (Giersch’s team has not commented on the court order.)
Though this new order – which came after Rutherford told PEOPLE that Giersch would not allow her to see the children on a visit last week – means her kids will come home, it shouldn’t necessarily be interpreted as a sign that they’ll stay here.
“It’s a temporary decision, and the June court date is going to be an incredibly important date to see how it pans out,” Nancy Chemtob, a New York family and divorce lawyer not involved in the case, tells PEOPLE.
Still, Dan Abrams – ABC’s legal analyst and Mediaite founder, who has written articles supporting Rutherford’s cause for years – calls the development a “big victory” for the mom.
“Even though its temporary, it seems to demonstrate that the court is upset that its specific orders have either been ignored or dismissed by Daniel,” he tells PEOPLE.
According to the court order, Giersch “is alleged to have committed numerous violations” of the 2012 judgment. Rutherford’s claims that he was not letting her spend time with the children or bring them back to America for visits, along with the fact that he never reapplied for a U.S. visa, are the basis for her application. (A former lawyer on Rutherford’s team was allegedly responsible for the revocation by reporting the German businessman’s allegedly illegal activities to the State Department. She has denied any involvement.)
“She filed a motion saying there’s been a substantial change of circumstances, he’s not complying with the terms of the agreement, he’s making false accusations or obstacles as to why she shouldn’t see the children, so now the judge ruled, ‘Okay, fine, the children are awarded back because there has been a change in circumstances,’ ” Chemtob says. “The judge said, ‘You need to return the children to the court and be here on this date.’ Now, on that date, the other side is going to come I’m sure with evidence refuting everything she said.”
Hermes and Helena do have to be back in the United States by June 15. The California court has asserted jurisdiction over the children, who are U.S. citizens.
Plus, Monaco is a signatory to the Hague Convention, an agreement among more than 90 nations to protect the interests of children and comply with other countries’ legal proceedings.
An attempt by Giersch to keep his kids in Monaco “would be a violation of the court order and the breach of it is hugely severe,” Chemtob says. “The punishment of him not coming back or not complying with the court order in itself could be a reason to transfer custody to her.”
As for the estranged couple’s day in the Los Angeles Superior court, Abrams says the existing parenting arrangement could be altered completely.
“The court will hear both sides as they battle over whether it is in the best of the children to stay in France with Daniel or come back home to the United States to live with Kelly,” he says. “The court will also re-evaluate all aspects of visitation, etc.”
Says Chemtob: “There could be a modification, the children could be returned to the United States. A lot of times in relocation cases, they may go to school in the U.S. and spend their summers there. They could modify the access schedule to do what’s more appropriate for children of that age.”
Chemtob adds that it’s unlikely the judge will make a final decision on custody at the June hearing – there will probably be a briefing schedule, motions and eventually another trial.
“It’s an issue of fact and law. So the facts are: Did he violate, is he alienating, is she a good mother to take care of the kids on a regular basis in the U.S., are her parental rights going to be sorted if they continue to reside there?” Chemtob explains. “All those are issues of fact, and then the issue of law is something else.
“Usually, there will be a trial. That’s how you determine the issues of fact – who’s telling the truth.”
Both Chemtob and Abrams tell PEOPLE that the judge may ask Hermes and Helena where – and with whom – they would prefer to live.
“There could be forensic psychiatrists appointed, and I think one of the most telling things in this case is what the children are going to be saying, what they want to do, because of their ages going to be considered,” Chemtob explains. “They’re obviously much more verbal than they were last time this all happened.”
“The children may be interviewed, and a lawyer called a guardian ad litem might even be appointed again to represent their interests,” Abrams says. “The last representative for the children recommended that they stay with Kelly in the United States, but the California court in 2012 decided to reject that recommendation.”
The Father’s Options
The purpose of giving Rutherford temporary custody, Chemtob says, is to ensure that Hermes and Helena are returned to the United States – if the exes still shared joint custody, Giersch could have theoretically stopped them from boarding a plane.
However, Giersch now has to allow the children to travel to Los Angeles, and he or his representative must be present at the hearing in June. Chemtob says the German businessman could go to an appellate court in Monaco or the United States, and ask for a stay, but Abrams does not think he would be successful.
“He can certainly appeal in California, but I think it unlikely any California court will change the order before the June 15 hearing,” he says. “The interesting question is what happens if a Monaco court and Daniel refuse to adhere to the California court order. Then, you have American citizen children being kept in a foreign country in direct violation of a United States court’s order.
“I am confident that if that were to happen that State Department would get involved on Kelly’s behalf and that the California court would be even more likely to grant her permanent physical custody.”
If Giersch were her client, Chemtob says she would “100 percent” recommend that he comply with the California court order – and present his side of the story before the judge.
“I can’t imagine any lawyer would say otherwise, unless he had a real basis to appeal,” she says. “If he really had a real basis to appeal that they misapplied the law, then i would say, ‘Okay let’s just comply. If you think you have a strong case, then you should win when you get here.’ ”
As for Giersch’s chances, Chemtob says, “I think there’s a 50/50 chance, I don’t even think it’s 60/40, that when the kids come back, the court in California could hear evidence that would send the kids back to Monaco again.”
The Mother’s Best Move
On the other hand, Chemtob suggests Rutherford go the hearing prepared with a thorough explanation of how she would care for Hermes and Helena if granted permanent sole custody – and how she would encourage their relationship with their dad. The key, she says, is to paint a clear picture of what the children’s lives would be like back on American soil.
“Where are the kids going to go to school? Who’s going to watch them? Are you working, who’s going to watch the children while you’re working? What’s the support system, how are you supporting the children?” she says. “How are you going to let the children see their father, how are you going to foster the relationship between the children and their father – are you going to FaceTime, are you going to let them email, are you going to let them go for long weekends? How are you going to break up a winter schedule like Christmas break?”
“When my clients come in and they have a plan that really takes into consideration how the other parent’s going to be able to see the children, that’s what the judges respect,” she continues.
She adds that Rutherford’s financial situation – she declared bankruptcy in 2013 due to the mounting legal fees and travel costs – should not be a disadvantage.
“Being able to support the children is one of the factors to consider, but someone shouldn’t be penalized because they have less money than the other spouse,” Chemtob says. “So it would be a factor that’s considered, but it wouldn’t be looked poorly on her that she had to file for bankruptcy.”
Abrams is confident Rutherford will find the justice she’s been seeking for six years.
“Based on Daniel’s conduct, in particular his seeming disregard for the California court’s orders, I would expect the court to have the children come back to the United States, where Daniel can then finally apply for a U.S. visa again as he has long been required to do,” he says.