""What the judge did yesterday was shocking, illegal and abusive to my children," she tells PEOPLE in a statement. "Without any legal authority, a judge from the lowest ranking court in the state court system violated the highest ranking deferral constitutional rights of my American citizen children."
Rutherford, 46, appeared in New York Supreme Court on Tuesday after Judge Ellen Frances Gesmer signed a writ of habeas corpus filed by her ex-husband Daniel Giersch on Monday. The hearing followed the Gossip Girl star's refusal to fly son Hermes, 8, and daughter Helena, 6, to Europe last week after they spent the summer with her in N.Y.C.
"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," Rutherford says. "The children's father didn't care enough about the 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."
"I did my best to comfort the children, but there are no words to help children understand why a judge would be so cruel," she adds.
Giersch's mother did appear in court Tuesday and took the children to the airport after the judge gave her decision. Giersch's legal team told reporters the kids were happy to reunite with their grandma.
Rutherford was supposed to bring Hermes and Helena with her to the hearing, but she arrived alone, with her lawyer explaining she hoped to shield the children from the "media circus" and assuring that they were in a safe location about 10 minutes away. But Gesmer angrily said she did not "look kindly upon" the actress's failure to fully comply with the order.
Courtesy of AquaBall
When the children's father filed papers this week demanding that the children be taken into custody, he told Judge Gesmer there was an emergency and that he did not know the whereabouts of the children, or whether they were safe. That was a lie," she says. "I told him in writing repeatedly that the children were in New York, safe with me. He Skyped with the children and talked to them many times during the periods when he claimed he did not know their whereabouts, or whether they were safe. It was all lies to persuade the court to issue an emergency order."
"As for Judge Gesmer, she has to live with herself," Rutherford continues, "and if she has a conscience, I suspect she will not sleep well, ever again."
In the statement – a joint one with her attorney Wendy Murphy, who was not present Tuesday – Rutherford outlines some of the legal arguments her counsel raised in court after the press was removed from the room.
"Judge Gesmer had no authority to force American citizens to leave the United States," the two allege, adding that "the children are now and always have been exclusively 'habitual residents' of the United States."
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Rutherford and Giersch, 41, have been caught up in a bitter custody battle since she filed for divorce in 2008. A California judge ordered the children to live with their dad in Monaco temporarily in 2012 because his visa had been revoked, and they spend summers with their mom. But her fight became entangled with the question of where she is able to appeal that decision this summer, when both California and New York family courts relinquished jurisdiction over the matter.
Monaco is asserting jurisdiction, and there is a hearing set there for Sept. 3. Though his lawyers say Giersch is not "looking to punish" his ex-wife for trying to keep the kids with her, she could face restricted access to the children afterward.
"After this episode, we will be speaking with our client and his attorney in Monaco and maybe considering taking different measures about future visits to the United States, how the passports are held or whether the visits need to be supervised, because we don't want a reoccurrence of this a year from now," Giersch's lawyer Ira Garr said Tuesday.