Kelly Rutherford's Custody Battle Gets More Complicated: Did Her Ex Forge an Email?

"As our papers filed today indicate, the visa revocation was unfortunately very real," Daniel Giersch's attorney told PEOPLE in a statement

Photo: Michael Williams/Startraks

Kelly Rutherford‘s custody arrangement hinged on her ex’s U.S. visa being revoked – but now her lawyer alleges Daniel Giersch doctored evidence that influenced a judge’s 2012 decision to move their children abroad.

As followers of the six-year saga know, the Gossip Girl actress lives in New York, but her son Hermes, 8, and daughter Helena, 6, have been staying in France and Monaco with Giersch, 41, under a court order for about three years.

The reason for the separation? Although they technically share joint custody, Giersch, who lived in Los Angeles with Rutherford, 46, before their breakup, left the country in 2012 when his U.S. visa was revoked. So Rutherford has had to travel back and forth to Europe to see her children – by her count, more than 70 times.

But on Thursday, her legal team dropped a bombshell, alleging that an email the German businessman submitted during the 2012 trial about his visa being revoked was falsified.

“We brought to the California court’s attention for the first time today, the fact that a fraudulent email purporting to be sent to the children’s father by the U.S. Embassy in Berlin was submitted to the court in 2012 to justify the California court’s initial decision to make the children leave the United States and reside abroad,” attorney Wendy Murphy, who has been representing the children on behalf of Rutherford in federal court, said in a statement to PEOPLE.

Despite those claims, a Los Angeles judge declined to consider the matter Thursday during a teleconference discussing whether California or Monaco should have jurisdiction.

“Shockingly, the judge today ignored that evidence that that email was forged, though the record is clear that the email was never authenticated by either the father or the court, and it is abundantly clear that the document is not authentic as it is signed by the ‘US Consulate in Berlin’ and there is NO consulate in Berlin – there is only an embassy,” Murphy said. “The idea that a fraudulent document would lead to the forced exile of American citizens is unconscionable.”

However, Giersch’s attorney Fahi Takesh Hallin shot down the allegation.

“As our papers filed today indicate, the visa revocation was unfortunately very real,” Hallin told PEOPLE in a statement.

No one is denying that Giersch’s visa was revoked, Murphy says: The question is whether the language in the email he submitted to the court is accurate.

Murphy claims an expert pointed out three irregularities in the note: It’s signed by the U.S. embassy in Berlin but there is only a consulate in the German capital, and there is no date of visa revocation or date the visa was issued.

So what would he have gained from allegedly falsifying the email? Murphy speculates that the document made it seem as if he could not re-enter the United States without a visa.

A photocopy of the forwarded email obtained by PEOPLE reads: “Information has come to light indicating that you may be in inadmissible to the United States and ineligible to receive a result that you are required to reappear before a U.S. consular officer to establish your eligibility for a visa before being permitted to apply for entry to the United States of America.”

But the German businessman would not have required a visa to simply visit America, Murphy says.

It’s not the first serious accusation thrown around since the couple filed divorce in 2009: He has said he wasn’t notified of Helena’s birth and that Rutherford refused to put his name on the little girl’s birth certificate. Rutherford’s camp claims Giersch has been blocking her access to her kids since March and their European sojourn amounts to forced “exile” from their homeland. Back in May, she was given temporary sole custody of Hermes and Helena, who are American citizens, in order to bring them back for an evidentiary hearing that was supposed to take place Monday but has been postponed to July 9-10. But a California judge has since issued a stay while courts in two countries try to untangle the complicated case.

Giersch has his own hearing in Monaco on June 22, when he could file for sole custody in that country. Rutherford will fly to the tiny Mediterranean principality for the proceeding.

Meanwhile, she says Giersch, who was supposed to apply for a new American visa but never did, has done all he can to prevent a family reunion.

“My children were only 2 and 5 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,” Rutherford said in a statement Thursday. “I hope this is finally coming to an end and my children will soon be coming home.”

Giersch has repeatedly not commented on the custody battle “to protect the children from any negativity.”

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