During a prearranged phone call Thursday, California and Monaco judges decided against sending the Gossip Girl star's kids with ex-husband Daniel Giersch to Los Angeles for a court hearing Monday

By Michele Corriston
Updated June 11, 2015 03:40 PM
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Credit: Randy Brooke/WireImage

Kelly Rutherford has hit another roadblock in her fight to reunite her family in America: Her two children will not travel to the United States for a planned custody hearing next week.

During a prearranged phone call Thursday, California and Monaco judges decided against sending the Gossip Girl star’s kids with ex-husband Daniel Giersch to Los Angeles for a court hearing Monday, multiple sources tell PEOPLE. The L.A. judge is not certain he has jurisdiction over the case and postponed the court date until July 9, but sources say Giersch already has a hearing in Monaco on June 22 – when he could file for full custody. A rep for Rutherford confirms she will be traveling to Monaco for that hearing.

“No decision has yet been made,” David J. Glass, the lawyer who represented Rutherford during Thursday’s tele-conference, said in a statement. “We believe strongly that the Monaco Court, which was improperly petitioned by Mr. Giersch, will ultimately recognize that its earlier actions in this matter have not substantially conformed with the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). We are also confident that once the California Court hears all the evidence, it will choose to continue to retain jurisdiction over the matter, and will order the children back to California. As Judge Juhas stated in his ruling on May 22, 2015, the children are only residents of the United States, and can never be citizens or residents elsewhere.”

Wendy Murphy, an attorney who has been representing the children’s citizen rights on behalf of Rutherford, spoke out against the postponement.

“Ultimately this case is about the passage of time, and whether the fact that two American children lived abroad – under force of court order – for more than two years somehow transformed a temporary parental visit with their father into mandatory forced residency in a foreign nation,” Murphy told PEOPLE in a statement. “The obvious answer is, no. Indeed, the passage of time can only facilitate the children’s prompt return to this country because no court ever has authority to cause an American citizen child to be forced into exile from their own country.”

“It is disturbing that judges from two nations lack appreciation for the simplicity of this constitutional reality because involuntary expatriation was rendered unconstitutional by the Supreme Court decades ago, and for good reason,” she continued. “There is nothing more fundamental than the right to reside in one’s own country, especially this country – because the precious rights of American citizenship have no value on foreign soil.”

The news comes after Rutherford, 46, was given temporary sole custody in late May to bring Hermes, 8, and Helena, 6, to L.A. on Monday. The actress and Giersch had technically shared joint custody, though the children have lived with their dad in Monaco and France since 2012, when his U.S. visa was revoked. But two weeks ago, a California judge issued a stay on the order until Thursday’s call.

“My children were only two and five years old when they were sent to live in a foreign country. They were supposed to return after a temporary stay in France and Monaco, but more than two years is not temporary. I’ve flown back and forth over 70 times to be with our children,” Rutherford said in a statement Thursday. “The children’s father promised the California Court in 2012 that he would apply for a visa so he could be with the children here, but he has failed to do that. And since March of this year, he has prevented me from visiting our children at all. I hope this is finally coming to an end and my children will soon be coming home.”

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The L.A. judge ruled Rutherford and Giersch should arrange for Hermes and Helena to spend the summer in the United States as they have in the past.

“Per the 2012 decision, Kelly has been with the children in New York during the 2013 and 2014 summers,” Giersch’s attorney, Fahi Takesh Hallin, tells PEOPLE.

But a source close to Rutherford – who has not seen the kids since March – tells PEOPLE that Giersch has not agreed to do so.

“I can’t imagine that the children won’t be permitted to come to the United States as they’ve done for the past two summers,” Rutherford said in her statement. “But, so far, their father has not kept up his side of the deal, and I am concerned that he will try to further prevent me from spending time with them.”