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Kelly Rutherford, Husband Ordered to Testify in Custody Case

Kelly Rutherford, Husband Ordered to Testify in Custody Case
Kelly Rutherford, Daniel Giersch and son Hermes in 2008
Michael Williams/Startraks

01/21/2009 02:25PM

Kelly Rutherford and her estranged husband Daniel Giersch have been ordered to testify in court regarding travel issues surrounding their 2-year-old son, Hermes.

Both parties appeared Wednesday for a 20-minute hearing in a Santa Monica, Calif., court, and both will return Thursday to take the stand.

The Gossip Girl star, who's four months pregnant with their daughter, is seeking to take Hermes to New York (where the show is filmed) for the next several months. Giersch, who has called his wife's work schedule "very hectic and stressful," strongly objects to having her take Hermes to New York.

Divorce Gets Nasty

Rutherford's lawyer, Lance Spiegel, argued in court that the actress "would suffer harm because of contractual obligations" if she doesn't show up in New York for work. He also said that the bicostal commute with Hermes was in keeping with a schedule that has already been in place for the last year and a half. Hermes "has never once spent a night away from his mother," added Spiegel.

Fahi Takesh Hallin, the attorney for Giersch, argued that Rutherford "would be working in New York, and it makes no sense [to have] Hermes be taken care of by a stranger" while the actress is busy on the set, asserting that Giersch has been the boy's primary caretaker all along. Takesh Hallin added that Hermes is only accustomed to being in New York for short periods of time, not months.

Tension grew toward the end of the hearing when Rutherford's attorney asked that Thursday's testimony be closed to the public. Giersch's lawyer shot back that Rutherford had been apparently speaking to media outside the courtroom before the hearing, to which Rutherford exclaimed "She's lying!"

The judge declined to rule on Rutherford's request pending testimony.

Giersch Says He's Not Dangerous

Rutherford, 40, looking solemn, showed up in court dressed casually, wearing no makeup and loose-fitting jeans with a yellow floral print shirt. She made no comment as she left.

Giersch, 34, who wore a black jacket and a silver tie, appeared calm. Asked for comment following the hearing, he joked, "My only comment is that I'm not dangerous," a reference to Rutherford's accusations in court papers that he has a temper.

The estranged couple are mired in an increasingly nasty divorce, and both are seeking sole custody of their children.

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