Kelly Rutherford‘s children are on their way back to Monaco with their paternal grandmother after a New York Supreme Court judge upheld the custody order Tuesday.
The actress appeared in court this morning to face the consequences of refusing to send her children back to Monaco on Friday.
“Basically nothing has changed. The court order in California that was then entered in Monaco remains consistent, the children primarily reside with Mr. Giersch in Monaco,” Ira Garr, an attorney for Rutherford’s ex-husband Daniel Giersch, told reporters after the hearing Tuesday. “Ms. Rutherford is free to visit anytime she wants and she has certain specified times under the agreement, but she had indicated at one point that she would like to come at the end of the summer so they can take the children to school together. He has been perfectly accommodating to whatever request she has made. He just wanted to make sure the children were coming back as they were supposed to.”
Garr and Giersch’s other lawyer, Robert Michaels, said Rutherford also gave Giersch’s mother the children’s U.S. passports.
Wearing a crisp white shirt and pants and a cream cardigan wrapped across her shoulders, Rutherford looked somber as she entered the courtroom alone – she initially did not bring her children, a move that angered the judge on the case.
Rutherford was required to appear in court with son Hermes, 8, and daughter Helena, 6, after a New York Supreme Court judge signed a writ of habeas corpus on Monday filed by Giersch.
At the start of the hearing, Rutherford’s lawyer told Judge Ellen Frances Gesmer that the children are “close by, maybe 10 minutes away,” to protect them from the “media circus” outside the courthouse. The children were brought in through a side entrance just before noon.
Just half an hour before, Giersch’s mother – who was in attendance, according to Giersch’s lawyers, so she she could look after the children during the hearing – had walked out of the courtroom smiling.
Gesmer said she did not “look kindly upon” Rutherford’s failure to comply with the order requiring the children’s presence. When Rutherford tried to address the judge directly, Gesmer shut her down.
Giersch’s team asked to excuse the press from the proceedings, and Gesmer agreed, banning media from the courtroom after saying they will begin by assessing the jurisdictional issues at play.
Ultimately, Helena and Hermes were once more ordered to say goodbye to their mother in the courthouse and left with their grandmother en route to Monaco. A member of Giersch’s legal team tells PEOPLE the children were heard speaking in their dual tongues of English and French as they reunited with their grandmother.
Rutherford, 46, and Giersch, 41, have been caught up in a bitter custody battle since she filed for divorce in 2008. A California judge ordered the children to live with their father in Monaco temporarily in 2012 because his visa had been revoked, and they spend summers with their mother in New York.
The actress has been fighting to move them back to the United States but hit two roadblocks this summer when both California and New York family courts ruled they no longer have jurisdiction over the case. Rutherford disobeyed a Monaco court order when she announced Friday that she was not flying Hermes and Helena back to Europe.
“No state in this country is currently protecting my children. It also means that no state in this country currently requires me to send the children away,” she said in a statement.
Following her refusal to return the children, German businessman Giersch accused her of kidnapping them and filed the writ of habeas corpus. “Anyone associating themselves with Kelly and her abduction is violating the law,” his lawyer Fahi Takesh Hallin said in a statement Monday.
Now Rutherford could find herself with less access to her son and daughter, though Michaels said “there’s been no indication of any kind of sanctions and no indications that Mr. Giersch is looking to punish anyone.”
“I would be surprised if she was allowed to take the children out of Monaco again without some level of security,” Michael Stutman, head of the family group at Mishcon de Reya New York, told PEOPLE. “Maybe she won’t be able to travel with the children except one at a time, always having to leave a kid behind.”
Though Rutherford did not speak to the press after Tuesday’s hearing, a TMZ video shows her choking back tears after leaving the courthouse.
“I have no words at this moment,” she said. “No words.”