Read Headlines with Caution

by Bree Staines on June 12, 2016

Bree Staines

It was recently reported in tabloid media of former star of the television show Gossip Girl, Kelly Rutherford, has failed to gain custody of her children to her former German partner, Daniel Giersch. The family law matter was filed in August 2015 in Monaco after Kelly failed to return the children to Daniel’s care after the summer holidays in the United States of America. It was reported that from 2012 to the commencement of the summer holidays, the children resided with Daniel in France and Monaco and in 2013 an Order was made for the children to primarily live with him. Kelly can now only spend time with the children in France and Monaco.

Tabloid articles and comments on same have mentioned that “the children should be with their mother”, that Kelly stated “My children ask me all the time if I am still fighting for them…I always tell them the day will never come when I say no”, and that “The children shouted ‘Mommy’ at court after the decision was made.”

It is easy to forget when reading such articles on the trials and tribulations of celebrities what the real life application, or indeed the truth, of the matter is. In this case, which presents common elements of parenting matters; it is important to keep in mind the following points, especially if you are dealing with your own family law matters:

  1. Daniel commenced proceedings in August 2015 assumedly on the basis that Kelly was not following a Court Order that the children live with him and they were living in a country other than their habitual country of residence. Accordingly, his application could have been made as a recovery order, or an application under the Hague Convention on the Civil Aspects of Child Abduction (which would have only been in relation to having the children returned to Monaco, not the ongoing parenting arrangements. If a parent does abduct or “kidnap” a child, which includes withholding the children from the other party without sufficient reason, it could result in that party to be looked upon unfavourably by the Court in future proceedings as such actions are rarely considered to be appropriate.
  2. Without knowing all details of the case, it cannot be simply assumed that because Kelly is the mother of the children they should live with her and that she will eventually win her fight. In Australia, the Court looks to what is in the best interests of the child when determining the ongoing parenting arrangements. Since the children have been living in France and Monaco for almost three years, the Court could have considered it in the children’s best interests to not have their residence and everyday life changed by ordering them to live with Kelly in America, especially if she has the means to travel to see them often in France and Monaco.
  3. Despite the loving sentiment of Kelly’s statement “I keeping telling the children”, it may have a negative impact on your child’s wellbeing (and the presentation of your family law case) if you are viewed as involving the child in the legal dispute.
  4. If you do have final orders made in your matter, you should keep in mind that they are the Orders to end the current legal dispute. Circumstances in the future may change that could cause the parenting Orders to no longer be in the best interests of the child, and the matter be renegotiated or litigated.

If you have concerns about the Orders or arrangements in place for your child, or if the other party is withholding your child from you (whether you are their primary carer or not), contact Armstrong Legal to get the correct strategic advice that is in the best interests of your child.

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