Giersch, Rutherford, and Hermes in 2008. (Larry Larano/Getty Images)
On Tuesday, a judge in Monaco, where Giersch now lives, ruled that the exes' children — son Hermes, 5, and daughter Helena, 3 — are to remain in the country with their father (where they've been since May 20) because Rutherford has a flexible enough schedule to allow her to travel between New York City, where she films the CW drama, and Monaco, and also because Giersch cannot legally enter the United States. "Kelly is devastated by the court ruling and will never stop fighting for her children," her rep tells People. "An appeal is already in the process."
Rutherford, 43, filed for divorce from Giersch, 37, in January 2009 after just two years of marriage and asked the court to give her sole custody of then-2-year-old Hermes with Giersch only getting monitored visits. He immediately fired off a response of his own, claiming that their son should remain in Los Angeles with him because the actress lived in a hotel in Manhattan and that it was no place for their son to be raised. "[Rutherford's] routine is that she has weekly hair appointments for at least two hours, manicures, pedicures, shopping and the like," said Giersch. "She has been able to do all of that because I have been taking care of Hermes, and am happy to continue doing so, as it would be best for him."
In May of that year, Rutherford hired a private investigator to spy on her ex while he was caring for Hermes in L.A. The findings revealed that the pool was uncovered for three days, even though Hermes was not in its vicinity unsupervised, but she still took Giersch to court over it. Three days later, the two exes met again to have a judge rule whether or not it was too stressful a time for the toddler to begin potty training. In June, Rutherford gave birth to Helena … and failed to notify her ex, even though they had agreed beforehand that she would. "I found out about it through Internet reports like everyone else," Giersch said in a statement after missing his daughter's birth. Rutherford's rep countered that doctors advised that no one else be in the room when she delivered.
Three years later, court papers now show that Rutherford is required to make "good faith efforts" to help get Giersch's U.S. residency reinstated, reports People.
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