On Thursday, the U.S. Court of Appeals for the Second Circuit denied her application to appeal an August ruling that sent Hermes, 9, and Helena, 6, back to Europe to live with their father, Daniel Giersch.
A lawyer for Rutherford had no comment on the ruling.
The custody battle has been on-going since 2012, when a California judge sent the children to France to live with their German-born father, whose U.S. visa had been revoked. In the years following, judges in California and New York both rejected the notion that they had jurisdiction in the case. This past August, Rutherford, who spent the summer with her son and daughter in New York City, refused to send them back to Monaco.
"It puts me as a parent in an odd place if no one is taking jurisdiction," she told ABC News at the time. "How do you put your kids on a plane not knowing what is going to happen? Clearly this was not thought out in a way."
However, shortly thereafter, a Manhattan Supreme Court Judge Ellen Gesmer ordered her to return them to their father's custody.