Kelly Rutherford

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The battle may be lost, but the war isn't over.

Gossip Girl star Kelly Rutherford recently lost a six-year court battle to her ex-husband Daniel Giersh, who has been living with their kids, 8-year-old Hermés and 5-year-old Helena, in France. The actress, 45, claims that the court's decision is unprecedented, as no other court in the United States has ever ordered American children to live in another country when they have an able parent in the U.S.

"I know it's not right. Parents know it," she told ABC News Tuesday. "Everyone knows it's not right."

In August 2012, a California judge sent the former couple's children to live in Europe 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 travelling abroad, Rutherford has been forced to fly to France to see her kids.

"I could sit here and tell you how often a cry. I can tell you how it feels to leave my kids in a foreign country, to go see them after not seeing them for weeks on end, not being able to take them to school, pick them up from school, dress them, smell them, hug them," Rutherford said, tears welling in her eyes.

The expense of her ongoing legal battles led Rutherford to file for bankruptcy. She was most recently in federal court arguing for her children's constitutional rights as U.S. citizens. The court dismissed the case, saying, "The children have not been deported." Hermés and Helena will "retain their United States citizenship, and once they reach the age of majority, they will be free to choose where to reside...Under such circumstances it would plainly be improper for the federal courts to assume jurisdiction over the case."

The California court had mandated Giersch continued to apply for a new visa so he could return to the U.S. with the children. However, the State Department confirmed to ABC News that it hasn't happened.

"I told my son...'You know, mommy is still fighting for you,'" Rutherford said. "My children, not only were they taken away, but they were sent to a foreign country. I don't know how you even explain to someone what it feels like."

ABC News reached out to Giersch for comment. "Daniel Giersch continues to protect the children from any negativity and therefore will continue to not engage in any of these unfortunate and false media fabrications which only served one person, but clearly not the children," his lawyer said in response.

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