Two American Kids Shipped to France in One of the Worst Custody Decisions. Ever.

Image credit: Michael Loccisano/Getty Images for Nickelodeon

Commentary by DAN ABRAMS, ABC News Legal Consultant

The TMZ headline screamed "Devastated." Much of the entertainment media followed, from People Magazine to E! After all, the mother who lost the legal right to live with her two children is actress Kelly Rutherford, who portrays Lily Van der Woodsen on the television show "Gossip Girl." The identity of the parties, however, isn't nearly as interesting or significant as the ruling itself - a judge ordering two American children to move to France because their father, Daniel Giersch, who is not a French citizen, was expelled from the United States.

First, some quick background: In 2009, when Rutherford was two months pregnant with their second child, Helena, she apparently suspected Giersch was cheating on her and sought a divorce. The case made headlines as they battled for custody of the children and hurled ugly allegations against one another. Rutherford didn't include Giersch's name on Helena's birth certificate and expressed concern that he would kidnap the children.

By 2010, the vicious quarreling subsided (a bit) as the courts stepped in and, while the children lived with Rutherford, Giersch remained an active part of their lives, particularly that of the elder child, Hermes.

In April of this year, for reasons not entirely clear, Giersch's American visa was revoked, he was forced to leave the country, and moved to Monaco. It is clear that a former lawyer for Rutherford informed the State Department of certain issues about Giersch's "businesses" that ultimately led to his being booted. Rutherford denies she knew anything about it while Giersch insists she did, but regardless, the State Department determined there was enough evidence to deport him.

Giersch's business remains enigmatic, to say the least. People Magazine reported that he was accused of "dealing drugs and weapons," while an affidavit presented in the case accused him of fraud. When questioned about this by Rutherford's lawyer, Giersch was unwilling to even say definitively whether he is employed much less exactly what he does (or whether he has a house in the Hamptons for that matter). Whatever the cause, since he can no longer legally enter the United States, Rutherford has been traveling with the kids to Bermuda, Canada and France, among other places, to afford him visitation. Meanwhile, while Rutherfords' official domicile was Los Angeles, she spends her time traveling back and forth to New York to shoot "Gossip Girl."

Enter Judge Theresa Beaudet of California Superior Court, Los Angeles County who, as it turns out, presided over a similar type of case before. Judge Beaudet was left to determine with which parent the children should reside. Custody would be "joint," but that's somewhat moot when one parent lives across the Atlantic.

In all custody cases, the court must look to what is in the "best interest" of the children, a squishy standard that dictates that the children's welfare must come first. There was no suggestion that Giersch was a better parent, just an exiled one. The two choices before the court: New York, where the kids had lived for much of their lives, made friends and had doctors, or the small town of Mougins, France, where Giersch's mother apparently has a home.

Put aside the fact that neither of the parents are French citizens, both of these children were born and raised in the United States. Amazingly, the legal question was whether the children of a loving American mother should be forced to live in a country where neither parent has citizenship because their father had done something that made him illegible to remain in the United States. Not surprisingly, an independent lawyer retained to represent the children's interests sided with Rutherford, arguing that the best interest of the children would be served by remaining in New York.

However, Judge Beaudet disagreed and ordered the move: "The best interests of the children will be served because the relocation plan for France is the only plan that offers the possibility of nearly equal parenting time while Giersch can not return to the U.S."

Rutherford can legally fly to France and he can't legally fly here, so the American children's best interest is to be wherever exiled Papa is permitted to live? Judge Beaudet's ruling often seemed more like that of a travel agent seeking the most direct route and least time in the air, rather than evaluating the realities of moving American children to Europe. While Giersch is also required to continue to attempt to seek a new U.S. visa (and Rutherford has been ordered to help), it is a stunningly unrealistic ruling and whatever restrictions the judge imposes are totally unenforceable in French courts.

So, Rutherford must have done something wrong? A judge can't possibly have issued this sort of draconian ruling without something more?

Well, yes, the court found that Rutherford had not been totally forthcoming about her work schedule and that her fears of Giersch abducting the children had led her to fail to "demonstrate the level of commitment to facilitating the relationship (with their father) that would be required of a residential parent in a relocation situation."

Wait - why is this considered relocation for her at all? Technically, Rutherford would be moving from California to New York, but this is where the court engages in a bit of sleight of hand by equating moving from California to New York (her "relocation," which is basically where the kids have been living anyway), with sending the kids to Europe. Not once in the judge's nearly-40-page opinion does she ever take note that shipping American kids to France is an extreme measure not remotely comparable to legally "moving" from California to New York.

Just as important, the judge whitewashed Giersch's weaknesses, most importantly his unwillingness to answer any real questions about his life or employment. While the judge found his testimony to be "halting, overly technical and reluctant. . .the court understands the reluctance of Giersch to make legal statements regarding residence and other matters that he may fear could be used against him. . ." So Judge Beaudet basically offered him a pass for refusing to answer extremely pertinent questions to protect him for getting himself into more trouble.

In fact, Judge Beaudet went as far as to blame Rutherford's team for Giersch's legal woes. She ruled that by Rutherford's former lawyer contacting the authorities, "he immediately took away one parent's ability to be with his children. . . I must say the court never imagined that anything like what [former lawyer Mathew] Rich did would occur in this or any other case."

The State Department determined that for whatever legal reason, Giersch is not eligible to be in this country, and yet the lawyer who reported him is the villain who stole away Giersch's children? Without passing judgment on whether Mr. Rich should or should not have turned Giersch in, for a judge determining the fate of children to turn a blind eye to legal concerns regarding one parent, seems almost implausible.

Rutherford's lawyer Lisa Helfend Meyer didn't do Rutherford any favors by repeatedly offering stereotypical generalizations about how men and women parent differently, to which a slightly irritated Judge Beaudet correctly pointed out that her decision must be gender neutral. But I wonder whether the judge would have felt differently about Rutherford's challenges balancing work and child rearing if she were a he. The judge dismissed the argument that Rutherford's uncertain schedule as an actress would make traveling to France at regular, scheduled times difficult. If she were a man who had to regularly travel for work, would the judge have been more understanding?

But, alas, it seems Rutherford never had a real shot anyway because Judge Beaudet believes France may have all just been part of a grand plan - these children's destiny. She demonstrated how insignificant she believed it is to ship American kids overseas by pointing out that the parents took the older child, Hermes, on a trip to France once and Rutherford placed the younger child, Helena, in a French school. Judge Beaudet said it "almost seems as if it fits within some plan they had when they first started the education of the children."

Parents beware: Teaching a foreign language, coupled with a vacation there, could lead Judge Theresa Beaudet to interpret that as a sign, all part of a grand plan.