Kelly Rutherford with Daniel Giersch
05/20/2009 at 02:00 PM EDT
Although they both stated in January they'd try to co-parent amicably
, Gossip Girl
star Kelly Rutherford and estranged husband Daniel Giersch are facing off in court again in a dispute over their 2-year-old son.
Rutherford, 40, who claims son Hermes is in danger because Giersch, 34, leaves the swimming pool uncovered at his Los Angeles home, hired a private eye last week to conduct three days of video surveillance on the German businessman, court documents show.
"Hermes is very young, very active, not water safe and in a moment's notice, could fall into the swimming pool," Rutherford warns.
Although video footage showed the pool was indeed uncovered over three days, nothing egregious was witnessed, according to the investigator's reports.
"Hermes is not in any danger whatsoever with regard to my pool because I have the pool fully covered with an automatic pool cover," Giersch states in his filing. "Hermes has no access to the pool area unless I take him to the pool myself."
On Tuesday, however, a court ordered Giersch to keep his pool covered at all times unless Giersch is close by.
Meanwhile, a hearing set for Friday will address the couple's differences over whether it's too stressful a time to potty train Hermes while his parents are in the midst of a divorce
and custody battle and since the child is about to become a big brother.
Rutherford, who's pregnant with the ex-couple's second child, a girl, is due to give birth in three weeks, court documents reveal.
Lawyers for both sides had no comment.