Daniel Giersch, Kelly Rutherford and their son Hermes on March 8, 2008 in Palm Beach, Florida. Credit: Larry Marano/Getty

It's been three years since Gossip Girl actress Kelly Rutherford and millionaire Daniel Giersch called it quits, but their custody battle is far from over.

Giersch, who resides in Monaco, cannot return to the United States because of a revoked visa. Rutherford had previously sought for sole custody of son Hermes, 5, and daughter Helena, 3, to keep them in the country.

On August 28, a judge ruled that Rutherford's schedule is flexible enough to allow her to travel to and from Monaco to visit her children. A source tells Us Weekly Giersch is "very relieved" by the judges' decision, "otherwise he would have been cut off completely from the kids. Now they can really have two parents in their lives, which he feels is best for them."

Rutherford -- who resides in New York City, where Gossip Girl is filmed -- plans to appeal the judge's decision to co-parent her children with Giersch in Monaco.

Hermes and Helena have lived with Giersch in Monaco since May 20, but according to an insider, they are "due to start school next week in New York. This is definitely becoming an urgent matter."

For now, Rutherford, 43, "is gratified by the outpouring of support she's received," the actress' rep tells Us in a statement. "She is devastated that her American citizen children were ordered to live overseas to accommodate their father because he's banned from entering the U.S."