The Gossip Girl star tells PEOPLE that New York has ruled it does not have authority over the matter, just days after California relinquished jurisdiction.
"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?" Rutherford says. "They were sent there by California temporarily to accommodate Daniel's visa issue, and now California won't bring them home."
On Thursday, a Los Angeles judge decided California no longer has jurisdiction over Rutherford's two kids with ex-husband Daniel Giersch. Her attorney Wendy Murphy filed a case in New York family court, but Rutherford says the judge decided Friday that state also does not have jurisdiction.
"New York said it had no jurisdiction because California had jurisdiction – which is silly – but it is what it is," Murphy tells PEOPLE. "This new jurisdiction vacuum leaves the children with only their American constitutional citizenship rights to protect them from forced exile, and as rights go, there's nothing stronger than citizenship, so we are optimistic."
Rutherford, 46, wed Giersch in 2007 and filed for divorce in 2008. They have joint custody of son Hermes, 8, and daughter Helena, 6, but the kids live with their father in Monaco during the year and spend their summers in N.Y.C. with their mother.
The arrangement began in 2012, when a California family court judge ruled that because Giersch's visa had been revoked, the children should stay with him, with Rutherford flying out for visits. She's been fighting to move her children back to the United States ever since, arguing that the plan was supposed to be temporary and pointing out that Giersch, 42, never reapplied for a visa.
Rutherford tells PEOPLE she has met with presidential hopeful Hillary Clinton, reached out to Secretary of State John Kerry and asked the State Department for help "to no avail" and describes what has happened to her as a "legal kidnapping." Her petition asking President Barack Obama to intervene has received more than 100,000 signatures, and she has testified at congressional hearings twice.
"It's just incredible as an American mom with America-born children," she says. "My forefathers fought for this country and the freedoms we enjoy."
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So if a California court sent Hermes and Helena to live in Monaco, why does the state no longer have jurisdiction? In his decision, Judge Mark Juhas wrote that neither Rutherford nor the children still have ties there – though Rutherford said she purposely lives mostly in New York because it makes for a shorter and less expensive flight to Europe.
"The ugly story behind the story is that family courts do not always protect children because they only deal with children's 'best interests' and interests are not enforceable as 'rights,' " Murphy says. "By contrast, higher-level courts enforce real rights, so we are optimistic now that California is out of the picture and we can focus on the children's constitutional rights. California's family court system has a terrible, horrendous reputation, and we are glad to be out of that state once and for all."
The visa issue is a messy one: A former lawyer on Rutherford's team was purportedly responsible for getting Giersch's visa revoked in 2012 by reporting the German businessman's allegedly illegal activities to the State Department, though she has staunchly denied any involvement. And Murphy claims Giersch forged an email used as evidence back in 2012 that made it seem as if he couldn't set foot on American soil. (He denies doing so.)
"Daniel will continue to promote Kelly's relationship with the children," Giersch's lawyer, Fahi Takesh Hallin, told PEOPLE in a statement Thursday. "He believes that the children deserve to love both parents and has never nor does he intend to ever participate in any negative press directed at Kelly. As always, Daniel will continue to guard the privacy of the children, in their best interests and for their safety."