Kelly Rutherford's Custody Battle: Legal Experts Answer 5 Burning Questions

Kelly Rutherford's Custody Battle: Legal Experts Answer 5 Burning Questions
Kelly Rutherford with Helena and Hermes in 2011
Randy Brooke/WireImage

07/24/2015 AT 07:40 PM EDT

Kelly Rutherford's custody battle has stretched across two continents, and now, it's coming to New York.

On Thursday, a Los Angeles Superior Court judge declined to grant Rutherford a new hearing in her war with ex-husband Daniel Giersch over where their two children should call home. California relinquished jurisdiction over the matter, and the former Gossip Girl star filed a new case in N.Y.C.

Rutherford, 46, and Giersh, 41, have joint custody of Hermes, 8, and Helena, 6, who have lived with him in Monaco for three years, forcing Rutherford to fly back and forth more than 70 times to be with them.

She lost an appeal last spring in New York federal court, but the new motion is in family court.



For both her fans and detractors, it's been dizzying six years of legal maneuvers and complicated processes. Below, two attorneys break down what's happened.

1. Why does California not have jurisdiction?
Although Rutherford has said she is bi-coastal, the judge wrote in his decision that "given the fact that the children have only spent approximately one week in California in over two years, if these children have any connection to California, it is tenuous at best."

Even though this custody case started on the West Coast – and it was a L.A. judge who sent the children to live with their father – California is no longer considered their home state.

"To sum it up, the judge's opinion was, 'I'm not going to let legalistic form triumph over substance: She doesn't live in California, she's not a resident in California, there's nobody left in California and there hasn't been for a while,' " Michael Stutman, head of the family group at Mishcon de Reya New York, tells PEOPLE.

When the children visit Rutherford for their summers, they mostly spent their time in New York – that's where they have the most ties in the United States. Custody cases "should be heard in the place where the facts are available," Stutman explains.

"There are virtually no facts available in California," Stutman says. "We live, in the 21st century, in a hugely mobile world, and the courts have developed mechanisms to fairly address the needs of people as they move from not only state to state or town to town but country to country and hemisphere to hemisphere."

2. Does she have a shot in New York?
Yes – if she can show the court that Hermes and Helena would flourish under their mother's care there more than with their father in Monaco – and that's no easy task.

"She would first have to prove that the reason she's in New York is that's where she needs to be either for work or for a relationship that she had to move for, or that she thought it was in the children's best interest," Nancy Chemtob, a New York family and divorce attorney at Chemtob Moss & Forman, tells PEOPLE. "Let's just say that one of the children is a tennis player or an ice skater or something that could be provided to the children in New York that couldn't be provided elsewhere."

Rutherford has said the whole reason she wasn't permanently living in California was because New York is closer to Europe, making for a quicker and cheaper flight to visit Monaco.

That reasoning may help her in the New York court.

"Her argument could be that it's closer to Europe and JFK Airport than California, and she moved there so there's proximity to the father and she was trying to accommodate him," Chemtob says.

To win a relocation, case, though, the actress needs to demonstrate that there has been a change of circumstances since the 2012 decision – like the fact that Giersch has failed to reapply for a U.S. visa, or her claim that on her last trip, he tried to keep her from seeing the kids.

Rutherford, Chemtob says, could tell the judge, " 'Okay, this is what the custody was originally, and since then he was thwarted my efforts to see the children. And he may have been deemed the primary custodial parent ... but now he hasn't fostered the relationship between the children and me."

That's a gamble considering the convoluted he said, she said history of the custody battle.

A former lawyer on Rutherford's team was purportedly responsible for getting Giersch's visa revoked in 2012 by reporting the German businessman's allegedly illegal activities to the State Department.

She has staunchly denied any involvement, telling PEOPLE in April, "Look, if I had had the power to get him sent out of the country, I certainly would have had the power to keep my children in this country."

Still, if the allegation is true, it would be seen as an attempt to alienate the children from their father. On the flip side, Rutherford's attorney Wendy Murphy claims Giersch forged an email used as evidence back in 2012 that made it seem as if he couldn't step foot on American soil.

"Daniel will continue to promote Kelly's relationship with the children," his attorney Fahi Takesh Hallin told PEOPLE 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."

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3. Can she stop them from returning to Monaco?
According to the existing parenting plan, Hermes and Helena spend their summer with their mother but must fly back to Monaco when school begins, and it's unlikely the case will be resolved by then.

To prevent them from leaving, Rutherford could file an emergency motion. To succeed, she'd need an affidavit from someone, such as a mental health professional, backing up her plea.

"There needs to be something that would tell a judge, 'We can't wait for a factual determination here. Look at all of these things that I'm showing you, it is more likely than not that I will win upon that hearing, and sending these children back to Monaco will cause them irreparable harm,' " Stutman explains.

It's also possible that Giersch immediately files a motion to dismiss the case, arguing that New York doesn't have jurisdiction over the children, Chemtob says.

4. Can the government get involved?
In her statement to PEOPLE this week, Murphy called upon Secretary of State John Kerry to intervene. Rutherford also started a White House petition in May that reached more than 100,000 signatures and was backed by celebrities like Kim Kardashian West, and she has testified at congressional hearings twice.

Beyond the exposure gaining the support of high-profile politicians brings, there's not much they can do outside of the legal system, Chemtob says.

"It's nice to have the publicity and the petition, but this law, it works," she says of the Hague Convention, an international agreement protecting children's rights that the L.A. judge cited in his ruling.

5. When will it end?
If the New York judge decides that state also does not have jurisdiction, Rutherford could file an appeal and move her case to the appellate court. If she loses there, she'd require special permission to move on to the circuit court, Chemtob says.

"I think the best case would be to go to Monaco and try it there on the fact that she would be a better custodial parent and [the children] should be able to live with her where she wants to live," she adds.

Though Murphy filed a case in New York family court Thursday morning, Stutman says he "would not be surprised" if the custody trial didn't even begin until next year.

"Meanwhile, the children remain with their father, they remain with their friends, they remain in their school, they remain with their doctors, they remain with all of their professionals," Stutman says. "And to pick up a child or children and uproot them at this point, Ms. Rutherford has a significant burden to shoulder. I would not say the odds favor her."

But after spending six years in courtroom after courtroom trying to bring her children back to the United States – and declaring bankruptcy because of legal fees – Rutherford won't give up now.

"I just want them to look back and be able to say that they had a happy childhood," she told PEOPLE in April. "I do my best to say, 'Look, listen to your own heart. No matter what anyone says, just know that I love you and that I'm doing the best I can, and that I'll never stop fighting for you.' "
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