Kelly Rutherford at a party during the 65th Cannes Film Festival in Cannes,… (Sebastien Nogier / EPA )
"Gossip Girl" mom Kelly Rutherford has suffered a major setback in her custody battle with ex-husband Daniel Giersch: An L.A. Superior Court judge ruled Tuesday that he will have residential custody of their two children in France.
The actress filed for divorce from the German businessman in 2009, when she was two months pregnant with their second child, Hannah. Giersch's business visa was revoked in January, complicating an already contentious case.
Rutherford was "devastated that her American citizen children were ordered to live overseas to accomodate their father because he's banned from entering the U.S.," she said Wednesday in a statement to E! News.
She had been seeking sole legal custody of the kids, with the intention of relocating them in New York from California. The judge decided to allow Giersh to relocate the children to France, where they will live with him, his mother and her partner, according to court documents obtained by E! In the event Giersh's U.S. visa is restored, he would relocate to New York, the judge said.
"An appeal is already in the process," her rep told People. Geirsch told the mag, "To protect the children and also Kelly, I have decided to continue not to comment."
Under what the judge tagged "the France Plan," the couple will continue to have joint legal and physical custody over Hermes, 5, and Helena, 3, with Rutherford required to fly overseas for her time with the children. The kids have been living with their father since May 20, People said.
Balancing things out a bit, Giersch is required to buy six round-trip coach airline tickets for his ex annually, and provide a house and car for her use when she's in town.
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