One morning almost exactly 10 years ago, Kelly Rutherford, a willowy blonde TV and movie actress, then 36, got up early, and, per ritual, led her Australian cattle dog, Oliver, into her Range Rover and headed down from her Hollywood Hills home to the Beverly Hills flats—the charming, intimate lower flats, between Charleville and Olympic. That’s where, after her birth in Kentucky and a spell in Arizona, she’d spent some happy years of her youth, as the responsible oldest child of a glamorous woman who’d had her children very young and been a model for Bill Blass, but then endured a hard divorce and ended up scrambling. In that admittedly “not-white-picket-fence family—but whose is?,” as Rutherford puts it, there was love but not stability, and teenage Kelly, in the role of junior mom, tried to bridge the gaps. “Our mother included my sister in raising me,” says her half-brother, Anthony Giovanni Deane, who is five years younger. “Kelly was my guardian angel.”
According to her friends, Rutherford’s childhood maternal instincts never abandoned her. When she was nursing her second baby on the set of Gossip Girl, on which she played Upper East Side matriarch Lily van der Woodsen during the show’s 2007–12 run, “she was a very devoted and passionate mother. Her first priority was always her kids,” recalls the series’s show-runner, Stephanie Savage. “She was amazing and caring to her children,” says Ed Westwick, who played bad boy Chuck Bass on the show. “She was how you would want your ideal mother to be. Most of the rest of us were teenagers and she was like our mother.” Caroline Lagerfelt, who played Rutherford’s character’s mother and has remained a friend, says, “When she’s with her kids”—Hermes, now nine; Helena, now six—“they cling to her in her cute, tiny apartment; they just putter about with Mom, and she keeps a simple, very comforting routine.”
Yet, for all her maternal ardor, Rutherford has been living a mother’s nightmare. In 2012, her two children were sent to live with their German-citizen father in foreign countries, France and Monaco, after a controversial, well-publicized custody decision. If her Gossip Girl colleagues are among those who best remember her daily life with her children, that’s because, except for rare vacation time when the children are allowed to come to New York (which Lagerfelt is describing), the years of the show were the last they were able to live with her.
Last August, Rutherford’s nightmare escalated to tabloid-headline-making proportions. After a Los Angeles court said it no longer had jurisdiction over the custody dispute, and a New York court then declined jurisdiction, Rutherford took a risky step: she felt she had no choice but to “wait a beat,” as she put it to me, before deciding what to do for the children, who, she claims, exhibited anxiety at the imminent prospect of leaving her side to return to their father in Monaco. So, Rutherford declined to abide by a June 22 agreement made in the Monaco court that required her to return Hermes and Helena to Giersch after she had custody of the children for a five-week summer vacation in the States. Rutherford contended that, since California had dropped jurisdiction and New York had declined it, no American court could compel her to send her children back to Monaco. Her ex-husband believed otherwise; his lawyer lambasted her as a child abductor. Within days, she was ordered by a New York judge to turn over the children’s American passports and to immediately put the kids on a plane back to Monaco.
She was now at a great disadvantage, and, during her next trip to Monaco, for a court hearing in the first week of September, legal pundits considered it a triumph that she was able to see her children at all. Another Monaco court hearing, scheduled for October 26, could determine her fate.
When she refused to turn over the children on August 7, some thought Rutherford’s desperate move to hang on to them had been self-destructive. Comment boards on news Web sites bristled with insults directed at her. Others saw her actions as the principled and understandable response of a mother who, as she herself puts it, has long been the David in a “David and Goliath” custody battle.
Trials and Errors
This dramatic chain of events began on that undramatic September morning in 2005. After walking her dog through her childhood streets, Rutherford—who was best known for a role on Melrose Place in the late 90s—stopped in at her favorite café, Il Fornaio, at Beverly and Dayton. She was at an anxious crossroads: a divorced, single woman past her mid-30s up against that great cliché, the ticking biological clock. She’d been dating a man she was “really crazy about,” but the romance had ended.
Three and a half years earlier, she had broken up with Venezuelan banker Carlos Tarajano. The two had wed in June 2001 in a lavish, media-covered church wedding in Beverly Hills. Shortly thereafter, what Rutherford describes as Tarajano’s heart condition manifested itself. She says she nursed her husband through his illness, yet, for reasons she declines to discuss, she filed for divorce in January 2002, seven months after they were married. He died in 2004; she describes the entire situation as “traumatic.”
There was a waitress at Il Fornaio who had been telling Rutherford, over the previous mornings, that a handsome young German businessman had glimpsed her there one day and wanted her to get in touch with him. Rutherford was sufficiently intrigued to e-mail the man. He e-mailed her back. They got together, she recalls, a month or two later, “in October or November.” His name was Daniel Giersch, and he was a boyishly handsome, wealthy go-getter—at 30, six years younger than she. “I thought he was cute, incredibly charming, a little bit of a playboy,” Rutherford says.
Giersch was a tech entrepreneur who’d made his first killing, at 19, on a same-day-postal-service company in Germany and who was now taking on Google in that country. In 2000, he had purchased the German rights to the trademark name “G-mail” (“G” as in “Giersch”) for his patents, and he was suing the tech super-giant for infringement: standing remarkably tough and spending, by his own account, more than a million dollars to keep up the long fight. (In 2012, Giersch settled for an undisclosed amount from Google.)
Rutherford, Giersch, and Hermes in Fallbrook, California, March 3, 2007.
Rutherford fell for Giersch and found herself pregnant within two months of their meeting. On August 18, 2006, two months before she was to give birth to Hermes, they married.
Rutherford appeared to be happy, and she was thrilled to be a mother, but those close to her wondered about her new husband. “He seemed very, very cold and calculated,” her half-brother says. “But I love my sister, and if this guy was going to make her happy, I was not going to be the one to bring up any negativity.”
Two years after Hermes’s birth, Rutherford became increasingly uneasy. “Daniel was subtly verbally abusive,” she says when I meet her at Ralph Lauren’s Polo Bar, in Manhattan in late June. It seemed “he was trying to alienate me from everyone in my life—my parents, my brother.” Confoundingly, for all his wealth, he lived in her house in L.A., and she signed a bridge loan for him. Furthermore, as she recounted in a court deposition, “[Daniel said he] never wanted to pay taxes in the U.S. or be on the U.S. radar.” (Giersch and his lawyer declined to answer questions from Vanity Fair.)
In December 2008, when she was three months pregnant with Helena, divorce proceedings were initiated. “I didn’t want any money from Daniel,” she says. “I wanted us both to be great parents.” She sought 50-50 legal custody, with her as the primary residential parent. Giersch went further. He sued for sole legal and physical custody of Hermes and of the not-yet-born infant daughter, Helena. He retained Fahi Takesh Hallin, a partner in the prestigious L.A. firm Harris-Ginsberg, who is an expert on international family law and is regularly named on top-lawyers lists. In addition to other work, she has, on behalf of foreign fathers, effected the removal of American children from the United States in at least three other recent cases, including that of an attorney named Sarah Kurtz, who was forced to relinquish to Sweden the infant daughter she was still breast-feeding. (In June of this year, Rutherford and Kurtz were invited to speak at a congressional briefing held with the aim of creating legislation to ensure “that American children living abroad have access to their American parent.”) Hallin remains Giersch’s counsel today. Rutherford has gone through nearly 10 attorneys.
Rutherford was now living in New York with Hermes and working on Gossip Girl, on an intentionally limited schedule to enable maximum parenting time. She gave birth to their daughter on June 8, 2009, in a Los Angeles hospital, during the series’s hiatus, but the months before the birth were difficult, she says. “Daniel made me go through a custody evaluation while I was pregnant. He sued me like he’d sued Google. He served me custody papers right up until I went into labor.” It was a very difficult labor. Feeling vulnerable and upset, Rutherford did not want her estranged husband in the delivery room. Giersch told the press that his lack of invitation to attend the birth “sickens me…. I would’ve wanted nothing more than to hold our newborn daughter.”
Although she listed the baby’s name on the birth certificate as “Helena Giersch,” she left the “father” field blank. She says she feared that, with his name on the birth certificate, he could take Helena out of the country without her knowledge. The reason for her concern? As she later testified, at one point in their marriage when she, Giersch, and his mother were out of the country together, “his mother made comments to me like ‘Why don’t you just go back to the U.S. and leave the child with us?’ I was obviously very shocked by this.” The blank space on the birth certificate would eventually prove to be a tactical error for Rutherford.
By the time, in late 2009, that the eventually 33-month-long custody trial commenced in the L.A. Superior Court room of the Honorable Teresa Beaudet, Giersch’s original attempt at sole custody was off the table and the two parents had agreed to joint legal custody. Giersch now sought completely equal parenting time.
Blake Lively and Rutherford in a still from Gossip Girl.
Rutherford did agree that “it is important that they see their father; that’s the goal.” Yet she worried. When Beaudet ruled that Giersch could have young Helena for a week alone, Rutherford said, “She hasn’t spent more than two nights away from me!” She then added, “It is hard, the stresses they are under every day.” An evaluator for the children agreed, saying that the “adorable, bright, gentle” Hermes was showing signs of “anxiety, separation, and demonstrating struggles at school” because of all the movement. Rutherford claimed, “Hermes says, ‘Mommy, I don’t want to go back and forth.’ ” Poignant, for sure. But in a custody culture where equality of both parents is paramount (long gone are the days when mothers automatically got preference), such maternal cavils can be interpreted as a mother’s attempt to hurt a father. Giersch and Hallin vigorously seized upon the possibility of Rutherford’s excessive “gatekeeping.”
