To onlookers Kelly Rutherford seemed like any other parent taking her children to their first day of school Sept. 3. With first grader Hermes, 5, and preschooler Helena, 3, in tow, “I met their teachers and gave them all my e-mail address,” says the Gossip Girl actress. “I wanted to cry the whole day, but I kept it together.”
Her emotional response was due to far more than a mom’s usual first-day pangs. In the latest chapter of a custody saga that has been simmering since Rutherford’s contentious 2009 divorce, a California judge on Aug. 28 ordered her children to live in France with their father, Daniel Giersch, a German citizen whose U.S. visa was revoked in January. So instead of taking them to class in New York City, where they’d lived almost their entire lives, Rutherford was seeing them off at an international school in Provence, France. In court documents Judge Teresa Beaudet said the move from New York to the South of France (Giersch, 38, currently resides between France and Monaco) would be the easiest way to maintain 50-50 custody following his deportation, given both parties’ wealth and Rutherford’s “job flexibility” as an actress.
For Rutherford, 43, the decision was shocking-and devastating. “I feel like my children have been stolen from me,” she says, blotting tears. Pointing out that the judge did not question her parenting skills, she adds, “I wonder what did I do to deserve this? I want to scream to the world about this injustice.” Legal experts are also baffled. “This is a case that will be taught in law school,” says famed attorney Alan Dershowitz, who has argued international custody cases and is now advising Rutherford’s team. “Two U.S. citizens have been effectively deported. They have been taken away from their mother, and she ends up being an occasional visitor. It’s a scary situation.” Though Beaudet claimed in her decision that a call from Rutherford’s attorney to immigration officials caused Giersch to lose his visa in the first place, the actress denies interfering. Neither the judge nor a rep for Giersch would comment.
Rutherford is now trying to adjust to her surprising new reality. The actress, who shoots Gossip Girl in New York, says she needs to keep working to fund her custody battle. “Money is relative; whatever I’ve earned, the legal bills have been higher,” she says. Whenever she has a hiatus, Rutherford takes a nine-hour flight to France. “You show up jet-lagged, but you want to be on for your kids,” she says. “You are staying in a hotel, which is not the coziest environment. So you are cuddling with your kids, watching movies, going to the park, trying to make it as fun as you can. Then you leave, and they’re saying, ‘When are you coming back, Mommy?’ I have to say, ‘As soon as I can.'”
Already, Rutherford has noticed a change in her kids, who had previously lived with her full-time, visiting Giersch three weekends a month and Wednesdays. “They don’t want to let go of me when I am there. They both want me to carry them at once, which is an impossibility,” she says with a faint smile. Helena “has gotten very clingy toward her brother because he’s the familiar thing in her life. But they don’t quite understand it,” she says. “I’m just afraid that the longer this goes on, they will have abandonment issues. They’ve never been away from me before.”
Now living alone in New York, she has found the adjustment tough as well. “I thank God for work, because if I didn’t have something to distract me, I would lose my mind,” says Rutherford, who plans to appeal the ruling-a move that she says will cost $500,000 in legal fees. Sitting in her Upper East Side apartment, “I look at their toys and pictures, and I want to be able to function normally, but there’s something missing,” she says. “It’s my children that I gave birth to and nursed and raised. I will never stop fighting to get them back.”