"Everybody agrees that it's best that the children be with both parents, and Kelly's enjoying being with them," a source tells PEOPLE

By Michele Corriston
Updated September 04, 2015 01:30 PM
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Credit: Courtesy Kelly Rutherford

Despite fears that Kelly Rutherford would lose access to her two children after her ex accused her of abducting them last month, the star is spending time with them after Thursday’s court appearance in Monaco.

The Gossip Girl actress was spotted grabbing lunch with son Hermes, 8, and daughter Helena, 6, in the South of France on Friday. A source says that the current parenting arrangement – in which she and German businessman Daniel Giersch have joint custody but the children live primarily with him and Monaco and France – remains in tact, though there is a new court date set for Oct. 26.

“Everybody agrees that it’s best that the children be with both parents, and Kelly’s enjoying being with them,” the insider tells PEOPLE.

Rutherford, 46, attended a two-hour hearing Thursday in Monaco, another source says. She’s been fighting to bring Hermes and Helena back to the United States, where they were both born, since 2012, when a judge sent them abroad to live with their father temporarily.

The nasty breakup took a dramatic turn this summer: After spending five weeks with the children in New York, Rutherford refused to return them because, as she told PEOPLE exclusively, they “got really panicky” and cried about leaving. Giersch, 41, denounced the controversial decision as kidnapping, and an N.Y.C. judge ordered Rutherford to turn in their passports, flying them to Europe with their paternal grandmother.

There’s a lot at stake in October, says divorce lawyer Michael Stutman, head of the family group at Mishcon de Reya New York.

Stutman, who is not involved in the case, speculates that there are three possible outcomes given Rutherford’s risky move in August.

On one hand, the Monaco judge could allow her to bring Hermes and Helena out of the country for more visits but require that these trips be supervised.

“Custody hearings only take into account what would be in the best interest of the children, not in the best interest of the parents. If it would be inconvenient for Kelly to see the children in Monaco, she should have thought of that before she pulled the stunt of not sending them back to their father,” he says. “It s in the children s best interest to live in a stable home, and whether they re United States citizens or not has no impact on where that home is.”

A more dire possibility? She could be stripped of all visitation rights, a consequence Stutman says would be “unfortunate.”

“The Monaco court should be taking the children’s best interest into account, and I just don’t believe awarding Kelly no visitation would be the healthiest choice for them,” he explains.

Stutman says he thinks the best-case scenario for Rutherford would be facing no restrictions on her access to the kids. Still, he says that “would have to mean there were facts given to the judge that no one else knows about, especially given her actions over the past few weeks.”

Rutherford’s ideal outcome is what she’s been dreaming of for six years: the right to bring Hermes and Helena home.

“This whole time, what I’ve had to do is take an overall situation that’s so bizarre and try to keep my kids healthy. I have to keep knowing if I’m okay, they’re going to be okay. I don’t want them to be fearful,” she told PEOPLE last month. “My children ask me all the time if I am still fighting for them. I always tell them the day will never come when I say no.”