A Los Angeles Superior Court judge ruled Thursday that California does not have jurisdiction over the case anymore – even though another judge from the state was responsible for the 2012 decision that sent the couple's kids to live with their father, German businessman Daniel Giersch, in Monaco against Rutherford's wishes after his visa was revoked.
Son Hermes, 8, and daughter Helena, 6, are spending the summer with Rutherford, 46, before returning to Europe.
Rutherford posted an Instagram quote shortly after the ruling: "Be patient with yourself." And her attorney Wendy Murphy – who represents her in New York and was not involved in the California hearings – believes that patience will pay off.
"Exactly what we wanted to happen has happened today in California. We filed a case in New York family court this morning, to provoke California to issue a ruling that we had been waiting for for almost two weeks," Murphy tells PEOPLE in a statement. "As predicted, the judge declined jurisdiction, which opens the door to New York courts finally having an opportunity to do the right thing. We are pleased that at long last this legal atrocity has been extricated from the grip of California's horrific family court system.
"Now we hope and expect the New York courts, and Secretary of State John Kerry's office will protect the children from further harm and ensure that they are able to reside in their own country, where they belong."
Murphy says the New York judge was "perplexed" that California forfeited jurisdiction over the case and that the legal system has "caused profound and irreparable harm to Kelly's children."
RELATED VIDEO: The Stars of Gossip Girl
"Hopefully today's developments will be the beginning of the end of the children's forced exile – once and for all," she added.
This isn't the first time Rutherford has gone to the New York courts: A federal judge in N.Y.C. denied her custody request in April.
Meanwhile, Giersch, says he only wants what's best for Helena and Hermes.
"Daniel will continue to promote Kelly's relationship with the children," his attorney Fahi Takesh Hallin told PEOPLE in a statement. "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."
COP / BuzzFoto / FilmMagic