Resorting to Self-Help: How Not to Prevail in Custody Proceedings

Resorting to Self-Help: How Not to Prevail in Custody Proceedings

One of the biggest stories from this past summer was the courtroom drama that unfolded in New York city as actress Kelly Rutherford, known for her role on Gossip Girl defended her decision to withhold her children from their father, German businessman Daniel Giersch. The series of events that unfolded inside and outside of the Courthouse involves questions of custody law, international policy, and high-stakes litigation. The biggest takeaway, however is one that may hit closer to home for parties involved in custody disputes.

After a hearing on an Emergency Petition in Custody filed by Mr. Giersch for the return of his children to their home in Monaco, Judge Ellen Gesmer held that Ms. Rutherford’s refusal to abide by parties’ 2012 Order in Custody was inexcusable, and ordered that the children be returned to their Father. The Judge had also ordered that the children, ages six and eight, appear at the August hearing so that their input could be considered. Ms. Rutherford made the decision to leave the children at home, a move that certainly did not curry any favor on her behalf.

While the case outlined above is still ongoing, one clear-cut takeaway emerged from this summer’s battle. Parents who flaunt court orders and neglect a judge’s express instructions ultimately prejudice their likelihood of success in the courtroom. In Pennsylvania, Judges and Masters make custody determinations based on the best interest of the children. If a parent decides to withhold their children from the other parent despite a court-ordered custodial schedule, they are essentially acting in defiance of a schedule that a Judge has determined to be in the best interest of the children. This type of behavior is referred to as “self help.” While self help may provide a parent with a slight short-term benefit, engaging in self help will almost certainly result in action being taken against that parent by the other side, and ultimately by the Courts.

Kelly Rutherford found herself subject to Judge Gesmer’s ire for her unilateral decision to keep the minor children in her custody at the end of their visit to the United States. Ms. Rutherford’s decision to circumnavigate the courts process and resort to self-help will ultimately create an uphill battle for her. Any legitimate argument that she had available to her has been considerably weakened by her decision to unilaterally set aside a court order. Parents who have a legitimate concern for the safety of their children or a legitimate issue with an Order of Court must proceed through the courts as soon as they are able to. Refusal or failure to do so ultimately portrays that individual as one with little regard for the best interest of their children and even less regard for the legal system.

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About the author

About Christopher Casserly

Chris joined the firm in 2013 after graduating from Villanova University School of Law. While at Villanova Chris focused on Family Law and Alternative Dispute Resolution. In addition, he participated in the Villanova Law Civil Justice Clinic where he advocated for indigent clients facing custody issues. Prior to attending law school, Chris received his B.A. from Providence College where he studied English and French. Chris is a Supervising Attorney and Team Leader at LaMonaca Law. Chris was named a “Top Lawyer” in Family Law by Main Line Today in 2015 and 2017, as well as a Best Lawyer in the area of Adoption in the Delaware County Daily Times. He is a member of the American Bar Association Family Law Section, the Pennsylvania Bar Association, and the Delaware County Bar Association, where he serves as chair of the Family Law Section’s Custody Committee. When he’s not advocating for his clients, Chris enjoys cooking, all things Seinfeld-related, and being at the shore with his family and their dog, Molly.