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OTRC: Kelly Rutherford cries on 'The View' over children, custody battle

Kelly Rutherford of 'Gossip Girl' speaks on 'The View' on September 13, 2012. (ABC)

Kelly Rutherford, an actress known for her role as Lily van der Woodsen on "Gossip Girl," broke down while talking about her on-going custody battle during an appearance on "The View."

In August, a judge ruled that her ex-husband Daniel Giersch, 38, a German businessman who had his U.S. visa revoked, will retain custody of their two children, who are U.S. citizens who were born and raised in New York, at his home in France.

"Yeah, they're in France. I last saw them about a week ago," Rutherford said on "The View" on September 13. "My little girl said, 'I want to come home mom, I want to come back to New York.' My son, who has kind of been brain-washed that where he is, is so much better, tells me 'momma, I love you so much, you're in my heart, I love you momma.'"

The 43-year-old actress said that her young son, who turns 6 in October, has "kind of been brain washed" by her ex-husband.

"I don't think he would intentionally harm the children," Rutherford said of Giersch. "I do think that the children are at risk because right now I was the primary parent right now I'm the visitor and there's a lot of things being said to them every day."

Rutherford and Giersch wed in August 2006 and split in 2009 when Rutherford was pregnant with their second child. The two children, son Hermes, 5, and daughter Helena, 3, had been visiting their father in France for the summer. The couple has been involved in a custody battle for three years.

"We were married for 18 months. I left when I was three months pregnant because I was pretty scared about what I was finding out about him," Rutherford explained. "I said let's separate and he just came at me. He was like, 'Uh uh.'"

The judge said that she was looking at what is in the best interest for the children and cited Rutherford's work schedule as an issue. The actress had to travel to places like Bermuda and Canada to see the children several times a month, because Giersch was exiled from the United States after violating his visa, but the judge felt was too much traveling for the kids.

The judge also accused Rutherford of not giving Giersch enough access to the children, after the actress said that she feared her ex might abduct them and bring them to Europe.

The judge ruled for a 50/50 caretaking split on custody for the children and since Giersch cannot enter the U.S. due to his visa issues, Rutherford must travel back and forth to France in order to spend time with her children.

"[I worry] that my children will be greatly affected by this. I just want them to be okay. To see them go through it, to be sent to a foreign country," Rutherford said. "They're just little babies. They need a chance to have a consistent life. My fear ... is that he could disappear tomorrow and I don't know where to look. There's no way to trace him, there's no bank accounts ... Right now, thank God, I know where they are."

The actress said that because of her job on the series, traveling to France in order to spend time with her children would be difficult, but she goes to France every time work allows her to leave.

Giersch declined to comment about the custody battle but he released a statement through his lawyer saying he is "focused on co-parenting the children, and continuing to promote any and all contact of the children with Kelly."

Rutherford said she planned to continue to fight to get her young children back with an appeal and said that defense lawyer Alan Dershowitz, who was legal adviser in the Elian Gonzalez custody battle, had taken an interest in the case.

Watch Kelly Rutherford's appearance on "The View" below.

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