Kelly Rutherford with her children, Hermes and Helena
's attempt to regain custody of her two kids has failed.
A judge has ruled that though Rutherford and her ex-husband, Daniel Giersch, technically have joint custody, their children – son Hermes, 7, and daughter, Helena, 4½ – will continue to reside in Monaco, where he lives, according to court papers obtained by PEOPLE.
The former Gossip Girl
star, 45, plans to appeal the judge's decision.
"It strikes me as outrageous and unconstitutional that children can be effectively deported in order to accommodate their exiled father without knowing why he can't come back in and he has not been required to make any efforts to try to get back to the U.S. by the U.S. courts," she tells PEOPLE.
Rutherford and German millionaire Giersch split in 2009
, when she was three months pregnant with Helena, and their custody battle
began soon afterwards.
The actress filed for bankruptcy
earlier this year, claiming that she spent almost $1.5 million on legal fees related to her divorce and custody battle as well as approximately 45 overseas to visit her children.
Rutherford is reportedly planning to fly to France soon to pick up Hermes and Helena and bring them back to New York City, where they will spend Christmas together.
With reporting by CHARLOTTE TRIGGS