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Andrew Toth/Getty Images
It may have come purely from the heart, but did Kelly Rutherford make the ultimate miscalculation?
The former Gossip Girl star last week defied a court order and refused to fly back to Monaco with her young children, who have been primarily living with their dad, Daniel Giersch, in Europe since 2012.
"Mr. Giersch can come to America on his German passport and visit the children here, just as Kelly has traveled back and forth to Europe on her U.S. passport to visit the children there for the past three years," Rutherford's attorney, Wendy Murphy, said in a statement. "Kelly and the children have been very patient with Mr. Giersch. He should do the right thing, honor his agreement, and protect the children from the trauma of needless litigation."
But Giersch's legal camp has since filed a writ of habeas corpus compelling Rutherford to appear in a New York courtroom on Tuesday, with the children. And according to family law experts, 6-year-old daughter Helena and 8-year-old son Hermes could be on a plane back to Monaco as soon as Tuesday night.
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"You can have some level of sympathy for her, if she's feeling desperate," divorce attorney Michael Stutman, head of the Family Group at Mischon de Reya New York, tells E! News, adding that it seems highly unlikely that Rutherford made her decision "with the advice of counsel to willfully disobey a lawful court order."
He says, "It's hard to imagine she had any legal advice" when she opted to not bring the kids back to their dad after they spent their summer vacation with her in the United States.
"I pray that officials in this country and in Monaco will agree that three years in exile is a very long time in a child's life, and that my children have a right to remain, once and for all, in the United States," Rutherford said Friday night, part of a lengthy statement explaining her latest move, noting that she hoped Monaco would "respect" her decision.
Last month, a California judge agreed with Giersch's camp that the state did not have jurisdiction over the matter, and a New York family court judge then declined jurisdiction a few days later as well. Now, the matter will be heard in Manhattan Supreme Court.
"If the Monaco court order is a lawful court order, as it appears to be...these children are on a plane tomorrow night," adds Stutman, who is not involved in the Rutherford-Giersch battle but has worked on international custody cases.
Asked whether the actress' actions will now improve Giersch's chances of getting sole custody, Stutman tells us, "It makes them exponentially better. One of the primary obligations of a custodial parent is to protect the children's relationship with the other parent. Kelly's actions are the antithesis of that."
"Ms. Rutherford's rather unlawful action doesn't make her a great candidate as a co-parent," he adds.
According to Rutherford's camp, Giersch filed for sole custody in Monaco last year after originally agreeing back in 2012 that the kids' stay with him would be temporary while he worked out some visa issues.
"Both Kelly Rutherford and Daniel Giersch are running a clinic on how to lose a custody case," matrimonial law expert Susan B. Moss, of New York firm Chemtob, Moss & Forman, also tells E! News. "Each has resorted to self-help and each time one of them does this, the results bite them in the behind.
"Now Rutherford is refusing to return the children. Of course a New York judge is going to make them go back. This will set her back significantly in her custody case in Europe. It is a stupid move which will hurt her significantly."
But to call it a matter of "child abduction," as Giersch's attorney Fahi Takesh Hallin said on Friday evening, after Rutherford announced her decision to keep the kids with her, is quite the leap, Stutman says.
"It's provocative and it's information being espoused by somebody who is not necessarily as conversant about the legal impact of what's going on," he says.
And while the ball does seem to be in Giersch's court, presuming a New York judge orders that Helena and Hermes be sent back to Monaco, Stutman says that there could be light at the end of the tunnel.
"Thus far, both parents are the parents of these children and neither have had their authority taken away from them," he explains. "So as long as they are still the parents of these kids, they can pretty much agree to whatever they want...They can effectively continue to try to make an agreement, make a plan to parent these children in some collaborative way—I'm sure everybody hopes that they will."
However, Stutman says, I think she may have a very difficult time now being able to see her children without there being some sort of restriction on her," whether it's having another person present during visits or being restricted from taking them out of the country with her.
Stutman also says that, though Rutherford has been compelled to present the children in court, actually marching them into the courtroom may not be such a wise move, either, if she has a choice.
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"What should happen," he says, "is Kelly's lawyer should call her former husband's lawyer and discuss some logistical things about tomorrow. Depending on what the court order says that she's been served with, she's to produce the children in the courthouse. That's not the best place to do that.
"I've run these writs before on behalf of parents [in similar situations]: They can be left in the care of a responsible third party...If Kelly continues to be as self-destructive as it seems, she may march up those steps with those two little kids and I can't think of anything more demonstrative of her inability to effectively parent than to do something like that."
In that case, "she's handing those kids to him on a silver platter."