A day after losing her children and being ordered to return them to their father in Monaco, actress Kelly Rutherford ripped Judge Ellen Gesmer and her decision in a new statement released to Us Weekly on Wednesday, Aug. 12.
"What the judge did yesterday was shocking, illegal, and abusive to my children," Rutherford, 46, tells Us in the statement. "Without any legal authority, a judge from the lowest ranking court in the state court system violated the highest ranking federal constitutional rights of my American citizen children."
As previously reported, the Gossip Girl actress appeared in court on Tuesday, and was ordered by Gesmer to return her son Hermes, 8, and daughter Helena, 6, to Monaco to be with their father, Rutherford's ex-husband Daniel Giersch. The German businessman and the actress split in December 2008 — while she was still pregnant with Helena — and have been fighting for custody of their kids ever since. The hearing on Tuesday was held after Rutherford refused to fly their kids back to Monaco last week — as previously scheduled — after they had spent part of the summer with her in NYC. Giersch then accused his ex-wife of child abduction.
Rutherford's latest statement also alleged that the court broke the law. "Judge Ellen Gesmer effectively arrested my children, claiming she had authority under habeas corpus to take them into custody because of a foreign country's court order," she tells Us. "But the law is clear that a New York judge cannot enforce any order from a foreign country unless and until the foreign order is 'registered' in the United States. Not only was there no Monaco court order registered in New York, no government official from Monaco asked the New York judge to register an order, or take any action against me or my children."
Rutherford believes Gesmer is in the wrong. "Knowing she had no authority, Judge Gesmer seized my children and their U.S. passports, and forced them to leave the United States and reside in Monaco, a country where neither they nor I, nor even their father, has citizenship," she tells Us. "The judge did not listen to one word I said and instead demanded that the children immediately be taken from my custody, and handed over to the lawyers for delivery to an airport. It was the most cruel act against a child I have ever witnessed in my entire life and the fact that it happened to American children at the hands of an American judge, in a United States courtroom is just inconceivable."
In her statement, she also listed some of the points her legal team raised in court. They include that Judge Gesmer had no authority to force the kids, both U.S. citizens, to leave the country, and that both Hermes and Helena are currently "habitual residents" of the U.S.
"This case is simple," she tells Us. "My ex-husband and I, and the California court, agreed in 2012 that the children's court-ordered stay abroad would be temporary, and that they would reside with their father briefly, solely to accommodate him while he undertook to resolve his U.S. work visa problems. He did nothing whatsoever to resolve his visa issues for three years, while my children and I waited patiently for some U.S. court to say 'that's enough time – the temporary period is over and the children must return to their own country either with their father or without him.'"
In fact, Rutherford called out her ex for not even showing up to court to take their kids home. "The children's father didn't care enough about his children to be here himself. Contrary to his many false claims, he, like all German citizens, can come to this country anytime on his German passport. But he didn't bother," she tells Us. Instead, the kids left for the airport with their paternal grandmother shortly after the decision was made on Tuesday.
Giersch's attorney Ira Garr told Us that Rutherford's goodbye with the kids was done civilly. "The kids didn't seem to look like they missed a beat — they kissed their mother, they were happy to see their grandmother, and, by the way, they are two beautiful kids," Garr said. "There was no scene. They hugged and said goodbye to their mother, and she said she will see them soon. They easily transitioned to their grandmother, who they love very much. Everything was done very civilly. They were told, 'Oh, you're going to see Poppa, and you're going with Oma.' The kids seemed fine."
In the final portion of her statement, Rutherford vowed that the battle for her kids will proceed. "I will continue to fight for my children, and one day I will land in the courtroom of a decent judge. My children ask me all the time if I am still fighting for them, and I always tell them the day will never come when I say 'no,'" she tells Us. "As for Judge Gesmer, she has to live with herself, and if she has a conscience, I suspect she will not sleep well, ever again."
Rutherford and Giersch have a court date scheduled for September in Monaco.
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