The Gossip Girl actress Kelly Rutherford appeared on NBC’s Dateline to discuss the current status of her child custody battle with her ex-husband Daniel Giersch.

Since Giersch’s visa has been revoked, Kelly’s two children Hermes, 5, and Helena, 3, have been forced to live with their father in France.

“Why would you take the kids away from their mother, out of their school, away from their friends and everything they’ve known, and plant them somewhere else?” asked Rutherford.

The judge declared that Giersch would have to provide Kelly’s plane ticket, a car and a place to stay when she visited France.

“I was on a plane three weekends a month,” the actress said. “I’m being punished for being a good mother and taking care of my children, and he’s being rewarded for having his visa revoked. Our kids are U.S. citizens and they have a right to be raised in the U.S.”

Kelly continued to speak as she started to cry, “It’s crazy. It’s like, what matters other than your babies? Nothing. What matters is that your babies are okay.”

Kelly and Giersch split in 2009 while she was still pregnant with Helena. While Giersch says he learned of his daughter’s birth through tabloids, Kelly says, “The truth is he knew that I was in labor and I was at the hospital. I just didn’t want him right there because it was very painful.”

HollyMoms, should Kelly be able to raise her children in the United States?

– Julianna Spence

More Kelly Rutherford News:

1. Kelly Rutherford: Losing Custody Of My Kids ‘Makes No Sense’
2. Kelly Rutherford Cries On ‘The View’: My Kids Could Disappear
3. Kelly Rutherford’s Custody Judge: Was She Biased Against Her?

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.

“The fact that there’s a ruling doesn’t mean its written in stone. Her best option is to stop appearing in the media, keep a low profile, show contrition, demonstrate that she’s a loving, caring mom and stop knocking her ex on TV. The TV audience doesn’t have a vote,” he points out.

He also urges her to try and improve her relationship with her ex. “A lot of time when people calm now, they come to arrangements which work for them,” he advises.

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.”

Good suggestion, Mr. Taub.

What do you think, Hollywoodlifers? Should Kelly try that route?

– Bonnie Fuller

More Kelly Rutherford News

1. Kelly Rutherford’s Custody Judge: Was She Biased Against Her?
2. Kelly Rutherford Cries On ‘The View’: My Kids Could Disappear
3. Kelly Rutherford Reunites With Kids In France After Losing Custody

Today Kelly Rutherford‘s two young children, son Hermes, 5, and daughter Helena, 3, have been taken from her arms and must now live in Mougins, France with their father, Daniel Giersch, in a custody ruling that has left many people as shocked as Kelly.

“Usually in a custody battle where both the mother and father are both considered to be good parents, the judge will defer to the parent who’s been raising the child,” says family law attorney Vikki Ziegler. “And in this case, it’s been Kelly and not her ex-husband. That’s why sources close to Rutherford are wondering if Judge Theresa Beaudet, who oversaw the case, may have had any bias against Kelly.

“Kelly and the judge’s stepdaughter, Amanda Smith know each other. They co-chaired an event together in 2010. Then at one point during the custody case Kelly complained about the judge and within 48 hours we heard that the judge was aware of Kelly’s complaint,” explains the source.

According to the source, the judge was asked to recuse herself from the case and she refused.

“It really doesn’t seem right that the judge didn’t recuse herself given the tangled web of relationships,” believes the source.

Now Rutherford is pow-wowing with renowned constitutional lawyer and Harvard law professor Alan Dershowitz on potentially taking the custody case into federal court. Rutherford would argue that her children’s constitutional rights are being violated since as U.S. citizens, they were forced to be deported to Mougins, France to live with their father.

This might be Kelly’s only legal option for regaining custody of her children.

Until then she must travel to France whenever she can in order to see her “babies,” a situation which understandably has left her absolutely devastated.

Our hearts go out to you Kelly! What do you think Hollywoodlifers — should Kelly’s young children have been sent away from their mom?

– Bonnie Fuller

More Kelly Rutherford News

1. Kelly Rutherford Reunites With Kids In France After Losing Custody
2. Kelly Rutherford Appealing Custody Ruling Forcing Her Children To Live Abroad
3. ‘Gossip Girl’ Finale: Kelly Rutherford Says Chuck & Blair Should End Up Together

Kelly Rutherford was devastated after a Los Angeles judge ruled in August that the best interest of her two young kids Hermes, 5, and Helena, 3, would be to live with her ex-husband Daniel Giersch in France. Although they have joint custody, Daniel cannot return to the US due to a revoked visa. An emotional Kelly visited The View on Sept. 13 to tell her side of the custody battle, and why she fears for the safety of her kids.

The custody dispute began when Kelly left Daniel, and she said he immediately went on the defensive.

Kelly Rutherford’s Child Custody Battle — Was Judge Biased?

“I left when I was three months pregant, because I was pretty scared about what I was finding out about him, and strange things happening,” she said on The View. 

But since Daniel cannot travel to the United States, and Kelly can only see her kids when she visits them in Monoco. She saw them about a week ago, and said her kids are begging to come home to New York, although she believes her son is being brainwashed.

“I dont think he would intentionally harm the children or I couldn’t live with myself right now, but I do think that they are at risk,” she said.

“I was the primary parent, and now I’m the visitor, and there are a lot of things being said every day that we all hear, and they aren’t things that kids need to hear,” she added.

But her worst nightmare is that she could lose her kids forever.

“My fear is that he could dissappear tomorrow and I don’t know where to look. There’s no way to trace him. There’s no bank account numbers there’s no taxes, there’s nothing.”

When asked how she plans to win back custody, she said she’s not quite sure, but that she’s working hard to appeal the ruling. ”I’ve been through pretty much everything,” she said.

During the Aug. 28 case, Judge Teresa Beaudet defended her decision, calling both parents, “exceptional,” and “excellent.”

“The relocation decision this court makes today, is without doubt one of the hardest decisions this Court has had to make in its nearly three years in family law,” she stated in court documents, according to E! Online.

“The best interest 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 Daniel cannot return to the US,” the judge said. “Once Daniel can return to the US, the parties have agreed to equal parenting time.”

Check out the clip below:

How tragic. We hope everything works out for Kelly and her children.

What do YOU think of the custody dispute HollyMoms?

– Christina Stiehl

More Kelly Rutherford news:

1. Kelly Rutherford Reunites With Kids In France After Losing Custody
2. Kelly Rutherford Appealing Custody Ruling Forcing Her Children To Live Abroad
3. ‘Gossip Girl’ Kelly Rutherford Sued For Spying On Her Ex Daniel Giersch

Kelly Rutherford visited her two kids Hermes, 5, and Helena, 3 on Sept. 3 for an emotional reunion in France, where the little ones showered their mom with hugs and kisses. The trip came shortly after a devastating court ruling on Aug. 28 that gave her ex Daniel Giersch residential custody, meaning the children must remain overseas.

But the Gossip Girl star, 43, is fighting to regain custody. On Aug. 31, she asked the judge for a stay to allow the kids to be back in New York to start school while she appealed the custody ruling. However, the stay was denied.

Kelly Rutherford’s Custody Battle — Was Judge Biased?

The judge also ruled that in order for the ex-couple to have 50/50 custody, the kids must stay in France with their father — who is banned from the U.S. since his visa expired — and Kelly would have to travel back and forth.

“Kelly is grateful for the outpouring of support from her friends and legal experts who are shocked that American citizen children can be ordered to live in France simply because their father is banned from entering the U.S.” David Goldin, Kelly’s spokesperson, told HollywoodLife.com EXCLUSIVELY.

With the stay denied, Kelly lost her last chance of having her kids back in New York before school starts.

“They went away for the summer to visit their dad and now all of a sudden they are starting school in France, so I think it shocked everyone,” Kelly told Good Morning America during an interview on Sept. 1.

“I’m all for 50/50 and all for children having a mother and father and co-parenting — it’s just that the way it’s set up now — I’m a working mother. I’ve been the sole supporter of my children for their entire life,” she said in the interview.

“I have a job, so I mean I’m going to do my best to be there obviously every chance I get, but I can’t just be there on a regular basis when I have to work and — I mean, I just can’t pick up and go, you know, that easily.”

What do YOU think of the ruling HollyMoms?

– Christina Stiehl

More Kelly Rutherford news:

1. Kelly Rutherford Appealing Custody Ruling Forcing Her Children To Live Abroad
2. ‘Gossip Girl’ Finale: Kelly Rutherford Says Chuck & Blair Should End Up Together
3. ‘Gossip Girl’ Kelly Rutherford Sued For Spying On Her Ex Daniel Giersch

Kelly Rutherford has just experienced the ultimate heartbreak: her children are now going to be forced to live overseas with her ex-husband Daniel Giersch. The Gossip Girl star has been in an ongoing custody battle with her ex-husband over their two children, Hermes, 5, and Helena, 3 and HollywoodLife.com has just learned that she will be appealing the judge’s ruling on Aug. 31!

“Kelly is gratified by the outpouring of support she’s received,” David Goldin, Kelly’s spokesman tells us. “And is devastated that her American citizen children were ordered to live overseas to accommodate their father because he’s banned from entering the U.S.”

Daniel Giersch & Kelly Rutherford’s Child Custody Battle — Was Judge Biased?

Judge Beaudet granted Daniel’s request to relocate the children to Monaco. The couple split in 2009 and Kelly has been fighting Daniel on this ever since.

HollywoodLife.com spoke a friend of Kelly’s who tells us. “It’s absolute lunacy that this guy has been exiled and that American citizen children need to go live with him.”

As of right now, Kelly gets the kids half of the time, but they will have to go to school overseas. Daniel’s visa has also been revoked, which mean Kelly will have to fly to Monaco to see her kids.

HollywoodLife.com can tell you that Kelly is appealing the ruling at 1:30pm PST on Aug. 31.

— Chloe Melas

- More Gossip Girl

1. Blair Waldorf: When Will You Realize Chuck Is A Changed Man?
2. ‘Gossip Girl’ Recap: Chuck’s Secret About Blair’s Divorce, Plus 4 More ‘OMG’ Moments
3. ‘Gossip Girl’ Preview: Serena & Blair Team Up Against Gossip Girl

Kelly Rutherford, if you’ve learned anything from playing the van der Woodsen matriarch — what comes around, goes around on the Upper East Side.

Kelly apparently hired a secret detective to spy on her ex-husband Daniel Giersch in April 2010, according to TMZ.

Kelly Rutherford & Ex-Husband Daniel Giersch’s Child Custody Battle — Was Judge Biased?

The lawsuit claims Kelly requested the service of Edward Banach “in relation to certain issues regarding child custody and other matters.” Edward was promised $86,249.85, but only got paid $28,214.35.

It’s time to pay up, Kelly! It’s definitely what Lily would do.

Are you surprised by Kelly’s behavior, HollywoodLifers? Vote and weigh in below.

- More Gossip Girl

1. Blair Waldorf: When Will You Realize Chuck Is A Changed Man?
2. ‘Gossip Girl’ Recap: Chuck’s Secret About Blair’s Divorce, Plus 4 More ‘OMG’ Moments
3. ‘Gossip Girl’ Preview: Serena & Blair Team Up Against Gossip Girl

There really is nothing like being in New York during the fall season, and Kelly Rutherford knows it. The 41-year-old Gossip Girl star spent some quality time with her two kids, son Hermés, 4, and 16-month-old daughter Helena, picking out some pumpkins (Halloween is only three weeks away!). While taking a break in the midst of the pumpkin patch, they enjoyed a couple of cans of Hansen’s All Natural Soda. It looks like Orange is their flavor of choice!

Check out Kelly’s cute and affordable Marimekko diaper bag!

After divorcing the kids’ dad, Daniel Giersch, earlier this year, Kelly is adjusting to being a single mom. “When you’re a working mom, you’re just busy all the time,” she told People a few months back. “There’s just never enough time in the day.”

–Roger Singer