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Kelly Rutherford can't fight in New York

ShowbizBy Sunday World
Kelly Rutherford can't fight in New York

Kelly Rutherford can't fight for her children in New York.

The 46-year-old actress - who has been locked in a custody dispute with ex-husband Daniel Giersch since 2012 - is bidding to regain custody of son Hermes, eight, and six-year-old daughter Helena, but a judge ruled that New York does not have jurisdiction over the case, meaning the 'Gossip Girl' star must now take her battle elsewhere.

This comes as a blow to Kelly as the ruling took place just days after a Los Angeles judge said the battle could not take place in California either.

Kelly told PEOPLE: "Neither California or N.Y.C. are taking jurisdiction. So who in the U.S. has jurisdiction of my America-born U.S. citizen children? They were sent there by California temporarily to accommodate Daniel's visa issue, and now California won't bring them home.

"It's just incredible as an American mom with America-born children. My forefathers fought for this country and the freedoms we enjoy."

Los Angeles Superior Court Judge Mark Juhas wrote in court papers last week: "The Court does not believe that it is obligated to relinquish jurisdiction to Monaco, only that it acknowledge that it no longer has jurisdiction over the children."

Kelly - who has custody of the children over the summer but makes frequent trips to Monaco, where they usually live with their father - had argued the case should continue in California because she resides there part time, despite being mostly based in New York.

But the judge ruled: "Given the fact that the children have only spent approximately one week in California in over two years, if these children have any connection to California, it is tenuous at best."

The actress - who has travelled back and forth to Europe more than 70 times since the kids moved after their father's US visa was revoked - is "extremely disappointed" by the ruling.

Her attorney, David J. Glass, said in a statement: "We are extremely disappointed.

"This court set up the current situation whereby my client was forced to live bi-coastally, but now, the court appears to be holding it against her. Likewise, the court created the situation whereby the children would lose their connections to California, and despite the Judgment's language precluding the passage of time from creating new jurisdiction, that is exactly what has happened."