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Kelly Rutherford

Andrew Toth/Getty Images

Kelly Rutherford wants to bring her children home.

Unfortunately, a federal court recently ruled that her two American-born children must stay with their father in France. "I feel empty," she said. "Just because kids don't vote and pay taxes doesn't mean they don't have rights to be raised in their own country. It's a humanitarian issue. It's a constitutional issue."

The federal court dismissed Rutherford's case, saying, "The children have not been deported." They will "retain their United States citizenship, and once they reach the age of majority, they will be free to choose where to reside."

"It doesn't make sense. How did this even happen?" the Gossip Girl star asked. "At the end of the day, I'm a mother and a citizen of this country no matter what I do for a living. What I'm asking for is help."

Rutherford's custody battle with Daniel Giersch began six years ago.

Then, in August 2012, a California judge sent Hermés, 8, and Helena, 5, to live in France with Giersch. The exes are supposed to share custody of their kids, but since Rutherford's ex-husband was refused reentry to the United States after going abroad, the TV star has been forced to fly to France to see them.

The expense of her ongoing legal battles led Rutherford to file for bankruptcy in 2013. Rutherford fears her celebrity status may have hurt her in this case. "It's a big misconception especially because of the character I played. Lily van der Woodsen and I had a big difference in money," she told Hello! of her Gossip Girl role. "[Daniel] just sued me until I had no more money." Her meager means have made it difficult to see her children. "I go to visit them as often as I can afford to go, about once month to every six weeks," she revealed. "The longest I went was eight weeks because I couldn't afford to pay my rent."

Rutherford wants to bring her children home, but she doesn't want to slander her ex in the process. "I want my kids to look back on this time and say, 'Thank god mom didn't say horrible things about dad and took the high road.' Eventually they're going to read about this and I want them to be healthy through this. They look to us to be the rock always and I take that responsibility seriously," she said.

"Overall," Rutherford added, "they know they're loved."

The actress and her lawyer, Wendy Murphy, also appeared on Fox News' Gretchen Carlson Reporting Wednesday to discuss the federal court's ruling. "My best argument to this court was, 'Look, no judge in this country has ever shipped American citizen children to live in a foreign country,'" Murphy recalled.

"It's an unprecedented case, and so we're not giving up. We lost at what's called the second circuit court appeals. We're now asking the full second circuit to review the matter. It's a larger panel of justices, and we're making a very simple argument: the Supreme Court of this country said, 'If you're an American citizen, no matter what you do—you can blow up buildings, be a terrorist—you can never ever be sent to live in exile. You can never be forced to leave your country.' Children are citizens, too," Murphy said. "If we win, we will establish for the first time that kids are citizens who can't be shipped like luggage to live in a foreign country. We will never give up, because it's such an important American principle of law." She ended her argument by saying, "If her kids can be shipped, anybody's kids could be shipped."