Boston lawyer and kids’ advocate Wendy Murphy has thrown a legal Hail Mary in New York federal court, hoping to win a groundbreaking case that would return “Gossip Girl” star Kelly Rutherford’s two kids to America after a judge ordered them to live in France.
“It’s a long shot. No one has ever done before what I propose to in federal court,” Murphy told the Track. “One of the justices said to me that in 39 years of doing this work, he’s never seen a case like this. And I told him, ‘Your honor, if we prevail, you never will again.’”
In a nutshell, Rutherford, who played Blake Lively’s mom in the teen soap for five years, split from her husband Daniel Giersch, a German citizen, and they shared custody of their two children. But after a trip abroad, Giersch was refused re-entry into the United States for reasons that are still unknown.
A California judge then ruled that, because Giersch could not enter the U.S. legally, the two children should go and live with him in France. This was over the objections of Rutherford and the lawyer representing the kids, Hermes, then 5, and Helena, then 2. The judge noted that Rutherford had been an excellent parent, but ruled it would be in the kids’ best interest to live with their father rather than having to travel to another country to visit him.
“These children have been exiled from their own country for a very long time now,” Murphy said. “They were shipped like luggage to France when they were 2 and 5 years old and they are now 5 and 8. These children are American citizens. Their primary residence should be in the U.S.”
Rutherford has spent millions of dollars fighting the court ruling and is virtually broke, said Murphy, who took the case pro bono. In fact, Rutherford had to forgo a past visit with the children in France because she could not afford the trip, Murphy said.
Rather than continue to litigate the case in California, Murphy took it to federal court in Rutherford’s home state of New York. There, she argued that the children had been unconstitutionally denied their citizenship rights. Murphy lost at the district court level, but the appeals court agreed to hear the case and she is somewhat optimistic.
“They put it on the expedited docket which is a sign that they see the matter as more urgent than some other cases,” she said.
At the hearing last week, Murphy argued that the California court had “ordered the children into exile” and asked the court to order U.S. Immigration officials to “go to France, take custody of the children and bring them home.”
“I argued that the federal government has the duty to fix the problem the state caused,” she said.
Assistant Attorney General Jacob Bergman, who represented the federal agencies Murphy sued on behalf of the children, could not even tell the judges why Giersch is not allowed to enter the U.S., when visitor’s visas for parents are routinely granted.
Meanwhile, a court in Monaco has declared that the children should permanently reside with their father and ordered that they could travel to visit Rutherford only when they have more than two weeks off from school — essentially meaning they can only come to the U.S. in the summer, even though they are still American citizens.
“We don’t send mass murderers into exile,” Murphy said. “But here you have two children being forced to live in France even though they are not French citizens, their father is not a French citizen and their mother is not a French citizen. If they were adults, this would never happen. The fact that they are children doesn’t change anything. They still have the same rights as any American citizen.”
A ruling is unlikely to come for some time, and it may be Rutherford’s last hope to bring her children home.
As always, do stay tuned …
