Actress Kelly Rutherford recently lost primary physical custody of her children to her ex-husband, Daniel Giersch, who currently lives in France due to the revocation of his visa. According to the Judge's Order, as reported by TMZ.com, the children's father was granted physical custody because "Daniel (who lives in France) has facilitated the relationship of the children with Kelly…and Kelly simply has not done so." The Order further stated that "[e]ven while under the scrutiny of an extended trial, Kelly still has declined to demonstrate the level of commitment to facilitating the relationship that would be required of a residential parent in are location situation." Though Kelly plans to appeal, it is important to note that facilitating a relationship with the other parent is an important part of working together as divorced parents.
In Georgia, custody is awarded under the "best interests of the child" standard. Under this standard, the Judge can consider any relevant factor, but is guided by a list of specific factors in the statute. OCGA §19-9-3. Specifically, the statute allows the Judge to consider "[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child." OCGA §19-9-3(a)(3)(N). Thus, if this case were in Georgia (assuming the facts in the Order are true), the outcome would likely have been the same.
Co-parenting can be one of the most difficult things to work out following a divorce. You are splitting up with your spouse, but you must communicate regularly with them regarding your children and likely see them more often that you might prefer. Often, you may have negative feelings about your former spouse, but you must refrain from sharing these feelings with your children and hindering a relationship between your children and their other parent. Though it may be hard for you, it will be even harder on the children if they have to listen to negative things about a parent, or cannot spend time with a parent. As seen in this case and under Georgia law, courts take parental alienation very seriously and will consider it in any child custody case. Thus, if you are a custodial parent and want to remain that way, you must find a way to work with your former spouse for the benefit of your children and include the former spouse in the children's lives, even if it is difficult for you.