NEW YORK: Did Kelly Rutherford DESERVE to lose custody of her kids with Daniel Giersch?

She should have played her cards differently and acted more reasonably and do everything the court said including add the father’s name to the birth certificate.

Poor Kelly Rutherford. She has been fighting hard to get her two young children Hermes and Helena returned to her custody in America after a California judge awarded physical custody to their father, a German native living in France and Monaco. Apparently the father used to reside in New York with Kelly and the kids but then somehow this case was heard in California and the judge appears to have taken a dislike to Kelly and divested her of custody after the father lost his US visa. What the heck happened in this case? It turns out, Kelly’s hands were not so clean – if this report is to be believed:

Did Kelly Rutherford inadvertently anger Theresa Beaudet, the judge presiding over her custody battle with ex-husband Daniel Giersch? Is that the reason that the judge ruled that her children, son Hermes, 5, and daughter Helena, 3, would have to live in France with her ex, instead of continuing to be raised here in NYC, with her as they always had? That’s a strong possibility believes top Manhattan family law attorney, Malcolm Taub, a partner in Davidoff, Hutcher & Citron LLP. Family court judges don’t want one parent to try and alienate kids from the other parent. One of the characteristics of being a good parent is promoting a relationship with the other parent,” explains Taub. In the judges decision, the judge chose to make Kelly’s ex husband the “residential parent” because “Daniel facilitated the relationship of the children with Kelly… and Kelly simply has not done so,” reports TMZ. The judge cited the example of Kelly repeatedly failing to put Giersch’s name on their daughter’s birth certificate, despite being asked several times by the court, TMZ writes. The situation now puts Kelly in a tough position believes Taub. “Unless there is egregious evidence, a court will not overturn the order right now,” he says. However, he does think there is hope that Kelly may be able to regain custody of her little ones in the future.

Malcolm Taub is a highly respected New York attorney and his opinion seems very well informed. Kelly’s refusal to add the father’s name to the children’s birth certificate after repeated orders to do so by the court was clearly a red flag as far as alienation of affection goes and “gatekeeping” which apparently is a technique a lot of women use to keep the children away from their father. She really, seriously screwed up there. The other thing is, why was her ex husband’s visa revoked? Did one of Kelly’s lawyers call the Immigration to get him removed from the country and if so, why? What was their motive? Because it looks like that backfired big time. Because they may have tried to cut this guy out of the picture but it forced the judge’s hand. If Mohammed can’t enter the US, then just have the kids live with Mohammed in France and have Kelly visit them at her leisure and expense. It seems to be what the judge did here which means Kelly fell on her own sword.

The other thing is, Kelly keeps saying that the kids’ legal rights are in jeopardy by having to reside in France. But is this credible? France seems like a very nice place to raise kids.Europe in general is very kid friendly. Technically they are based in Monaco, not France. But Monaco is very nice too with a civilized judicial system. Why does she think their legal rights are in jeopardy? By saying things like that, I think she hurts her case rather than helps her case. She is just being petulant and grabbing at straws trying to blackball her ex at any cost. This is just proving the judge’s point that she is unfit to be the custodial parent. She should instead acknowledge the good aspects of the French system but focus on why she is a better custodial parent (and by the way, as time goes on, even that argument becomes lame because with each passing day the kids become more entrenched in their life as french domiciles.)

Taub expressed that it would be a mistake for Kelly to bring a federal action to challenge the custody order – advice ostensibly given to Rutherford by Harvard lawyer and constitutional expert Alan Dershowitz:

He’s not encouraged by an option suggested to Kelly by top attorney and Harvard law professor Alan Dershowitz to appeal to a federal court, claiming that Kelly’s children’s constitutional rights have been violated since they’ve been forced to move to France.

“Even if Kelly won custody based on this ruling, she still would have to get a custody order in France,” he explains.

Taub re-emphasizes that, for Kelly, her best option to return her children to the U.S. is to “off the offensive and try to work out a situation with ex-husband Daniel that is reasonable.”

What do you think Kelly did recently? Bingo! But you almost can’t blame her. What other options did she have? Last week she went to federal court but the judge declined to hear the case on “lack of jurisdiction” grounds. Where does that leave Kelly? She will have to get those kids back to France STAT or face kidnapping charges. But it’s worse because her ex will never trust her again with those kids. He will probably get the French court to modify the custody order and now he will force Kelly to visit with the kids only in France. She will not be able to bring them back to America. Indeed, she will probably have to relocate to Monaco now in order to sustain a relationship with her kids. Is this a tangled web? Of course. But its all her fault. She should have played her cards differently and acted more reasonably and do everything the court said including add the father’s name to the birth certificate. It is hard not to feel bad for her but she called this all on herself.