"I know it’s not right,” Rutherford told ABC News. "Parents know. ... Everyone knows it’s not right.”
Rutherford has been embroiled in a six-year custody battle that she says spiraled out of control after a California judge sent her children to live in France with her German ex-husband, Daniel Giersch.
The pair are supposed to share custody of their now 8-year-old son, Hermes, and 5-year-old daughter, Helena, but since Giersch was refused re-entry to the U.S. after going abroad, Rutherford has had to fly to France to see her children.
“What makes this case so crazy is there was no allegation that Kelly Rutherford was a bad parent,” said ABC News’ legal analyst Dan Abrams. “The heart of the ruling was basically saying we don’t want to force these kids to fly around to visit their father who can’t come into the United States so we’re just going to move them to France.”
Rutherford says he is devastated to have her U.S.-born children living 6,000 miles away.
“I can sit here and tell you how often I cry…I can tell you how it feels to leave my kids in a foreign country…to see them after not seeing them for weeks on end,” Rutherford said. “Not being able to drop them off at school…pick them up from school…dress them…smell them…hug them.”
The expense of the ongoing legal battle led Rutherford to file for bankruptcy in 2013.
In dismissing Rutherford’s argument that her children have constitutional rights as U.S. citizens, the federal court ruled, “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 they reside.”
“Under such circumstances, it would plainly be improper for the federal courts to assume jurisdiction over the case,” the ruling read.
The California court had mandated Giersch to continue to apply for a new visa so he could return to the U.S. with the children, but the U.S. State Department confirms that has not happened.
“She’s really got two options here,” said Abrams. “One is to go back to California and say, ‘Hey California court, have your ruling enforced. ‘ And or, b, make this political, have the State Department get involved , have some leading political figures make a compelling argument that this is ridiculous.”
An attorney for Giersch told ABC News in a statement that, “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 serve one person but clearly not the children.”
Rutherford says the situation is difficult to explain to anyone, especially her kids.
“I told my son, ‘Mommy is still fighting for you,’” Rutherford said. "My children…not only were they taken away, they were sent to a foreign country.”
“I don’t even know how to explain to someone what it feels like,” she said.