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The Danger of Unanticipated Consequences: Trying to Plan for Child Custody—For the Greensboro Gossip Girl Fans, an International Hague Issue

13062458_1042739802458603_2436945721037467362_nBy Dana Horlick, Attorney, Woodruff Family Law Group

Most separated couples probably do not think about complex jurisdictional issues when they are deciding child custody issues. Maybe the schedule is one week on, one week off, with the parents alternating weeks wherein they have sole physical custody of the child for a particular week. Maybe one parent has to move cross-country for a job opportunity, so instead the schedule is split around school with the child living with one parent during the school year and the other on summer vacation. These seem to make sense, dividing the custody of the child in the way that allows both biological parents to take an active role in raising their child. When the Hague Convention on the Civil Aspects of International Child Abduction Treaty is involved with parents in different countries, the issues become very complex very fast.

In some cases, child custody may be fairly easily to figure out, with both parties being in agreement concerning child arrangements and practicalities go. However, the situation may become difficult, either if the parties disagree about how the custody should be split – i.e., maybe one party wants to limit the other’s custody, or maybe both parties agree on 50/50 custody, but one parent thinks that the one week on, one week off schedule is too disruptive – or if unanticipated circumstances arise. It is in these cases that it is particularly important to seek the counsel of an experienced family law and divorce attorney.

As an example of unanticipated circumstances, take the situation of Kelly Rutherford. You may know her from Gossip Girl, but she has been in the news lately for what has been going on with her children, not for her on-screen performances. Rutherford’s ex-husband, Daniel Giersch, was born in Germany and, in 2012, his U.S. visa was revoked. Therefore, he would no longer be able to travel to the United States to visit their children.

Judges in both California and New York said that the United States no longer had jurisdiction over the child custody matter of Hermes and Helena.   The father Giersch lambasted the Gossip Girl as a child abductor. A New York judge ordered the two children back to Monaco.  Then, a judge in Monaco ruled that Rutherford cannot bring her children to the United States, although she can visit them in either Monaco or France, where they will live with their father. Monaco is a party to the Hague Convention on the Civil Aspects of International Child Abduction Treaty, and Rutherford made a wrong decision to violate the Treaty by not returning the children.  Thus, the “habitual residence” of the children controls which country hears the matter of child custody.

Now Rutherford is left in a terrible situation. Her children are to live with their father, in either Monaco or France. However, neither she, nor her children, nor her husband, are citizens of either location. She cannot bring her children to the United States, where she resides. Instead, each time she wishes to see her children, she has to travel overseas to do so. She probably anticipated that her children grow up in the United States. Now, all that has changed.

This is an extreme example of unanticipated circumstances, but you can probably see the point. When making a custody arrangement, it is difficult to anticipate all of the possibilities. Experienced family law attorneys, like those at Woodruff Family Law Group, have dealt with international child custody situations and are prepared to assist you in dealing with such unanticipated circumstances.