Three Questions About Kelly Rutherford's Custody Case

Schweitzer Law Partners

Written By Donald P. Schweitzer, CFLS

Actress Kelly Rutherford’s child custody matter is back in the national spotlight after a federal court denied her request to modify the current child custody orders. The father of her children, who presently live in France, was given primary custody of their two children. The California trial court that granted the father primary custody, included within the custody orders a provision mandating the father bring the children back to California for visitation with Ms. Rutherford. However, the father was unable to bring the children back because he was denied entry into the United States. Much uproar over this case is heard in the media and a lot of people are asking questions about the fairness of the orders. In this article we answer three of the common questions that are being asked:

  1. Is it rare for a California family law court to allow one of the parents to live with the children in a foreign country?

No. This case was a “ move away” case, where the California trial court had to make a decision as to which parent the children should live with. These types of cases are very common and there is nothing unusual about the court granting the order allowing the children to live with the father in France.

  1. What does the Family court do when a parent is unable to travel back to California with the children to facilitate visitation with the left behind parent?

In move away cases, the logistics of arranging visitation with the left behind parent can be difficult, especially when the children are young as in this case (ages 8 and 5). Placing children on planes to visit the left behind parent can be extremely taxing to young children, which is why many courts will mandate visitation take place at the location where the parent with primary custody lives. In this case, it looks like the father was ordered to travel with the children when they visited Kelly Rutherford, which is also common when the children are young. At a certain age, most courts will allow children to travel unaccompanied, and the airlines have a procedure where an airline attendant sits with the children and walks them on and off the plane.

When the children are too young to travel unaccompanied, then the trial courts have the discretion to order the parent with primary custody to pay for the left behind parent’s airfare expenses, hotel lodging, rental car, and dining expenses. Ms. Rutherford needs to go back to the California trial court, and seek modification of the orders if they do not contain the provisions I just mentioned.

  1. What can Kelly Rutherford do now in light of the federal court’s decision?

She needs to file a motion for modification of the custody orders in the California court. Child custody orders are always subject to modification. As the children get older, a parent may seek to a modification to the existing orders, especially when the children reach a certain level of maturity and express their desire to be more with their mother. In Ms. Rutherford’s case, she may also consider filing a motion to modify the custody orders since there has been arguably a material change in circumstances, i.e., the father’s inability to comply with the court’s orders to travel back to California with the children. Under these circumstances the family court will have the discretion to grant Ms. Rutherford primary physical custody based on the fact she is more able and likely to share custody, given her ability to travel back and forth to France, unlike the father.