The actress, whose children live in Monaco with their father, told ABC News, "I am a mother first."
"From the beginning I have said I will fight for my children," she said.
After spending the summer with son Hermes, 8, and daughter Helena, 6, the actress, 46, was supposed to send the children back on Friday, but released a statement over the weekend, writing, "I have decided that I cannot lawfully send my children away from the United States to live in a foreign country."
"It puts me as a parent in an odd place if no one is taking jurisdiction," she told ABC News. "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."
After Rutherford refused to send her kids back to France, Giersch's attorney Fahi Takesh Hallin accused the actress of child abduction, in addition to extortion and making false statements. The actress sees this in a different light.
"My first priority is obviously to protect my children," she told ABC News. "It's very hard for the kids and it's been cruel in a way because we just want to see each other and be together and they are very young."
"Temporary means they come back to their own country, so what Kelly is doing is just respecting what the court said in 2012," her lawyer Wendy Murphy added. "They are American citizens. They have the right to live in their own country."
Giersch's legal team fired back last night, sending the actress a letter in which they demanded that Rutherford send the children back to Monaco immediately. His lawyers wrote that they've already prepared papers that would ensure the children's return, which they planned to file this morning in New York County Supreme Court.
"We would prefer not to be compelled to do so as our client is seeking to minimize any harm that may befall the children by virtue of their being placed in the middle of another acrimonious court proceeding," they added.
Giersch has a hearing in Monaco scheduled for Sept. 3.
"I called for them to get involved a while ago when [the kids] were in Monaco, saying they should bring the kids back," he said. "I think they are going to have to get involved, I think they are going to have to make an incredibly hard decision."