The former Gossip Girl star filed a lawsuit just hours after a New York judge ordered her two children be returned to their father in Monaco

By Aurelie Corinthios
Updated August 17, 2015 02:35 PM
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A federal judge has rejected Kelly Rutherford‘s last-minute attempt to get her children back after a state court ordered last week that they return to their father in Monaco.

Court records show that Rutherford, 46, filed an emergency writ in federal court Aug. 11 in an attempt to get her son Hermes, 8, and daughter Helena, 6, back – just a few hours after a New York Supreme Court judge sent them to live with her ex-husband Daniel Giersch in Monaco.

The judge denied Rutherford’s petition and tossed the suit that same day on the grounds that the case was a state matter, court records show.

Rutherford’s lawyer Wendy Murphy told PEOPLE on Monday that the federal court’s decision was “silly,” because federal courts always have jurisdiction to address court orders that require people to leave the U.S.

“Even convicted murderers who are in this country illegally are entitled to federal review before being forced to leave. Surely two American citizen children are entitled to at least the same due process?” Murphy said. “We are appealing the state and federal court decisions and look forward to proper rulings based on correct analyses of the Constitution, The Hague Convention, and the UCCJEA.”

Murphy added that they had asked the State Department for help and well as New York politicians, and members of Congress, “but nobody spoke up for the children.”

“Several congresspeople named above promised Kelly earlier this summer that they would at least write a letter to the state department telling them them to ensure that Kelly’s children remained on U.S. soil, but they did nothing” Murphy said.

Rutherford 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 A California judge ordered the children to live with their father in Monaco temporarily in 2012 because his visa had been revoked.

The actress has been fighting to move them back to the United States but this summer both California and New York courts ruled they no longer have jurisdiction over the case.

After Rutherford disobeyed a Monaco court order on Aug. 7 by refusing to fly the kids back to Europe, German businessman Giersch accused her of kidnapping them and filed a writ of habeas corpus that required Rutherford to appear in court with the two children.

Rutherford appeared in court on Aug. 11 and a New York Supreme Court judge ordered the children be sent back to Monaco. Hermes and Helena left for the airport with their paternal grandmother shortly afterwards.

RELATED VIDEO: Attorney for Kelly Rutherford’s Ex Says Kids Were ‘Happy’ as They Kissed Her Goodbye: ‘It Was Done Very Civilly’

“What the judge did yesterday was shocking, illegal and abusive to my children,” Rutherford told PEOPLE in a statement on Aug. 12.

Two days later, the actress appeared on Good Morning America and said she believes her children’s voices "have not been heard."

“I walked into a courtroom where everything felt like it was already done. It was a done deal,” she said. “His mother was sitting there with plane tickets, smiling, ready to take them.”

A hearing is scheduled in Monaco for Sept. 3, and Rutherford is still trying to raise politicians’ awareness of the issue (she’s already testified before Congress twice).

“There needs to be some law put into place,” she said on GMA. “I shouldn’t be having to fight this in a foreign court.”

With reporting by MICHELE CORRISTON