Shocking Affidavit Alleges Kelly Rutherford's Daughter Almost Drowned on Her Father's Watch
08/12/2015 AT 12:30 PM EDT
"I observed Helena fall into the hotel pool and nearly drown," Layla Lisiewski, a former Merrill Lynch trader turned artist, says in an affidavit exclusively obtained by PEOPLE. The court document was filed in 2012 as part of Rutherford's custody battle with Daniel Giersch.
Lisiewski says in the affidavit that Giersch only realized what was happening after she had jumped in the pool and pulled the little girl out.
"As soon as the man [Giersch] saw me holding his daughter, who was still whimpering, he jumped over and ran to us," the affidavit says of the German businessman. "He appeared terrified and took Helena from my arms."
The news comes the day after a New York Supreme Court judge ordered Rutherford to return her children to Monaco immediately. The former Gossip Girl star had ignored a Monaco court order to return the kids to their father last week, and Giersch's legal team filed a writ of habeas corpus. The children's German grandmother, Rosita Giersch, left the courtroom with Hermes, 8, and Helena, now 6, to fly back to Nice, France, on Tuesday night.
When reached this week, Lisiewski told PEOPLE that she remembered Giersch, now 41, was visibly upset after the May 6, 2012, incident: "I think he was panicking. He asked me a lot of questions like how long she was underwater."
Rutherford, 46, has been called a "kidnapper" and a child "abductor" by Giersch's lawyers for her decision to keep her children in New York, away from their father.
Lisiewski, who lives in Greenwich, Connecticut, was seven months pregnant when she was vacationing at the Tuckers Point Hotel and Spa in Bermuda with her husband and friends in May 2012, according to the affidavit.
The incident began, according to the document, when Lisiewski noticed a little blonde girl – who turned out to be Helena, not quite 3 – playing with her brother near the hotel pool. Lisiewski, who was was seated on a lounge chair on the left side of the pool, had previously seen the children with Giersch and assumed he was their father, she said in the affidavit. Giersch was seated in a lounge chair to the right of the pool by himself, she stated.
"I think because I was pregnant with a little girl, I was paying more attention to this little girl," Lisiewski told PEOPLE. "She and her brother had little squirt bottles and were spraying the plants near the pool."
According to the affidavit, Lisiewski noticed the little girl walk toward her side of the pool, apparently to fill her squirt bottle. Her brother remained on the other side of the pool, closer to Giersch. Lisiewski said she turned away for a moment and heard a splash. She looked back to see that the child had apparently fallen into the horseshoe-shaped pool.
"I saw that Helena had somehow fallen into the pool and was underwater," Lisiewski said in the affidavit. "In a split second, I looked toward the man, whom I assumed was the children's father, and then around the pool to locate a staff member. No one seemed to have noticed Helena fall into the pool. There was no other sound other than the splash, since Helena was completely submerged at this point."
Lisiewski said she is 5 ft., 8 in., and the pool came up to her chest when she jumped in to pull the child out of the water. She described Helena as "flailing" in the pool.
"I grabbed Helena and pulled her out of the water," Lisiewski recounted in the affidavit. "Her eyes were huge with shock and fear. I was concerned that her mouth was closed; she was not gasping for air. I instinctively and firmly patted her in the middle of her back, which caused her to throw up quite a bit of water. Helena started whimpering, which relieved me, as I thought at least I knew she was breathing."
Lisiewski said two hotel staff members finally noticed her and the little girl and came over with towels. The three of them, Lisiewski still holding Helena in her arms, then walked over to Giersch, she stated in court documents.
Giersch thanked Lisiewski profusely, she said, and offered to treat her and her friend to drinks or lunch. Lisiewski said in the affidavit that she declined his offer. She did asked Giersch why his daughter wasn't wearing what she called "floaties," inflatable water wings.
"She doesn't like wearing them," Giersch said, according to the affidavit.
"Mistakes happen, they can happen to anyone," Lisiewski told PEOPLE. "But I can't imagine losing sight of such young kids like that. You take precautions. You have to be responsible."
Lisiewski told PEOPLE she had no idea who Daniel Giersch was when she brought his daughter over to him. She said her girlfriend was on the plane returning to New York with him from Bermuda and found out he was Rutherford's ex-husband. She, in turn, knew someone who lived in Rutherford's building in New York who told the actress.
Rutherford then contacted Lisiewski, who now has two young children herself, to find out what happened, Lisiewski said.
Calls to Giersch's Los Angeles lawyer were not returned.