Kelly Rutherford, Hubby Spar Over Son at Custody Hearing

Actress wants to bring 2-year-old son to New York while she films Gossip Girl, estranged husband says it's too much for the boy

Kelly Rutherford believes her son is ready to take a bigger bite out of the Big Apple.

The visibly pregnant Gossip Girl star testified at a custody hearing Thursday that Hermes, the first of her soon-to-be two children with estranged hubby Daniel Giersch, has been going back and forth from New York to Los Angeles all his life and would have no problem living with her in NYC until her show finishes shooting at the end of March.

Giersch, meanwhile, has opposed the move, saying that he is Hermes' primary caregiver at home and has been since the child was born.

He reiterated his position today on the stand, saying that Rutherford sometimes works for as much as 12 hours a day and, when she isn't working, tends to fill her time doing things "of interest" to her.

Acknowledging that Hermes has never spent a night away from his mother, Giersch also said that Rutherford hasn't allowed him any overnight visits with his son since they split.

Rutherford, however, estimated her work days to be more like five hours long, rather than 12, and that Giersch, too, was often away from the home doing activities "of interest" to him—like running, golfing, getting manicures and pedicures and getting his eyebrows waxed.

Despite Giersch's claim that she hasn't allowed him to keep Hermes overnight, Rutherford said, she has never withheld their son from him and is open to a joint custody arrangement.

And if Rutherford were made to choose between her career and her son, she would choose her son, she testified.

No ruling was made today, and the hearing is expected to continue Friday.

"We both want what's best for our son, and I guess we'll find out more tomorrow," Rutherford told reporters outside the courthouse. "It's a lot, but I am optimistic. The show has been really great and supportive, and my family and friends help."

She also denied rumors that she was in danger of being written out of Gossip Girl.

Thinking about her son and the child she's expecting keeps her optimistic, Rutherford added.

"I want the best for Daniel," she said. "I want the best for our family."

Rutherford filed for divorce Dec. 30, citing irreconcilable differences, and filed additional papers earlier this month to prevent Giersch, who isn't a U.S. citizen, from taking Hermes out of the country.

(Originally published Jan. 22, 2009 at 5:44 p.m. PT)