Kelly Rutherford Dealt New Blow In Custody Battle, NY Judge Refuses to Hear Case

Pam WrightLife

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Kelly Rutherford has been dealt another blow in her six-year custody battle for her children.

According to a report by People magazine, New York has ruled that it will not hear the case because the court does not have authority over the matter.

"Neither California or N.Y.C. are taking jurisdiction. So who in the U.S. has jurisdiction of my America-born U.S. citizen children?" Rutherford told People. "They were sent there by California temporarily to accommodate Daniel's visa issue, and now California won't bring them home."

On Thursday, a Los Angeles judge decided California no longer has jurisdiction over Rutherford's two kids with ex-husband Daniel Giersch because she no longer lives in the state. Following that verdict, her attorney, Wendy Murphy, filed a separate case in New York family court, but Rutherford says the judge decided on Friday that New York also does not have jurisdiction.

"New York said it had no jurisdiction because California had jurisdiction – which is silly – but it is what it is," Murphy said. "This new jurisdiction vacuum leaves the children with only their American constitutional citizenship rights to protect them from forced exile, and as rights go, there's nothing stronger than citizenship, so we are optimistic."

Rutherford, 46, divorced Giersch in 2007 and the children, son Hermes, eight, and daughter Helena, 6, went to live with him in Monaco. The children spend their summers with Kelly in New York City.

In 2012, when Giersch's visa was revoked, a California family court judge ruled that the children should stay with him, with Rutherford flying out for visits. Giersch, 42, never reapplied for a visa and she's been fighting to move her children back to the United States ever since, arguing that the arrangement was meant to be temporary.

"It's just incredible as an American mom with America-born children," Rutherford said. "My forefathers fought for this country and the freedoms we enjoy."

Rutherford said she lives mostly in New York because it makes for a shorter and less expensive flight to Europe. However, that meant California lost jurisdiction.

"The ugly story behind the story is that family courts do not always protect children because they only deal with children's 'best interests' and interests are not enforceable as 'rights,' " Murphy says. "By contrast, higher level courts enforce real rights, so we are optimistic now that California is out of the picture and we can focus on the children's constitutional rights. California's family court system has a terrible horrendous reputation, and we are glad to be out of that state once and for all."

As for Giersch, he says he will continue to encourage a positive arrangement with Rutherford.

"Daniel will continue to promote Kelly's relationship with the children," Giersch's lawyer, Fahi Takesh Hallin, said in a statement Thursday. "He believes that the children deserve to love both parents and has never nor does he intend to ever participate in any negative press directed at Kelly. As always, Daniel will continue to guard the privacy of the children, in their best interests and for their safety."

Pam Wright