Kelly Rutherford is taking her custody battle into her own hands.
The Gossip Girl star did not fly her two children to Monaco on Thursday as stipulated by her court-ordered arrangement with ex-husband Daniel Giersch, a German businessman – and she announced Friday that she doesn’t plan to do so.
“These past three years waiting for my children to come home have been very difficult. My children were forced to leave the United states in 2012 when they were only 2 and 5 years old,” Rutherford says in a statement. “In May, a judge in California gave me sole custody and brought them home. I am immensely grateful and overjoyed to have them back. Since May, however, the court proceedings have been confusing.”
Rutherford, 46, details her fight to get her case heard in California and New York; both ruled they did not have jurisdiction over son Hermes, 8, and daughter Helena, 6, in the past two weeks.
The fact that neither state is claiming jurisdiction, she says, “means 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. Hence, I have decided that I cannot lawfully send my children away from the United States to live in a foreign country.”
Helena and Hermes have spent the summer with their mother in New York City, but they live in Monaco with their father during the year. They’ve called the European principality home since 2012, when a California judge gave the estranged parents joint custody yet ordered the kids to live with their dad temporarily because his U.S. visa had been revoked. (The State Department has said he never reapplied for a visa.)
“The Monaco court treated me with respect when I appeared there earlier this year to file a formal objection to their jurisdiction,” Rutherford adds. “I believe Monaco appreciates why it cannot assert jurisdiction over my children, and that Monaco will respect my children’s right to reside in their own country.”
“I hope that this decision will end this painful litigation, and that my children will be allowed to live in peace in their own country,” she continues. “Like all German citizens, my ex-husband can presumably travel to the United States on his German passport and exercise his parental rights in this country, just as I have done for the past three years in France and Monaco on my U.S. passport. I pray that officials in this country and in Monaco will agree that three years in exile is a very long time in a child’s life, and that my children have a right to remain, once and for all, in the United States.”
Giersch could not immediately be reached for comment.
But after a California family court judge relinquished jurisdiction July 23, his attorney Fahi Takesh Hallin told PEOPLE in a statement that Daniel “will continue to promote Kelly’s relationship with the children.”
“He believes that the children deserve to love both parents and has never nor does he intend to ever participate in any negative press directed at Kelly,” Hallin continued. “As always, Daniel will continue to guard the privacy of the children, in their best interests and for their safety.”
The actress wed Giersch in 2007 and filed for divorce in 2009, when she was three months pregnant with Helena. Since 2012, she estimates that she’s flown back and forth to Monaco more than 70 times to see her children.