The star was left devastated last month (Aug12) after a U.S. judge ruled five-year-old son Hermes and three-year-old daughter Helena would have a more stable living environment if they stayed with their father in the south of France, where they have been spending the summer (12), until he can resolve U.S. immigration issues which have banned him from entering the country.
The ruling has forced Rutherford, who shares custody with the German businessman, to fly back and forth between New York, where she films TV drama Gossip Girl, and Europe, so she can spend time with her tots.
The actress travelled to France to visit her children earlier this month (Sep12), but while little Helena has expressed a desire to return to their home in the Big Apple, Rutherford claims Giersch has "brainwashed" young Hermes.
Speaking on talk show The View, Rutherford said, "My little girl said, 'I wanna come home mum, I wanna come back to New York.' My son has kinda been brainwashed that where he is is so much better, but he always says, 'Mum, I love you so much, you're in my heart'. He'll be six on October 17. I hope (to see him on his birthday). I go (to France) every time work allows me to leave. I'm filming and then I get on a plane, every time...
"I don't think that he (Giersch) would intentionally harm the children, no, or I couldn't live right with myself right now, but I do think that the children are at risk because... there's a lot of things being said to them every day that we all hear, that aren't things kids need to hear. He involves them in a way that I think is not (right)."
The custody case has taken its toll on Rutherford and she admits she lives in constant fear that Giersch will simply vanish with their kids without giving her any prior notice.
She explained, "My fear is... he could disappear tomorrow and I don't know where to look. There's no way to trace him. There's no bank accounts, no taxes, there's nothing. My biggest fear is I won't know where they are. Right now, thank god, I know where they are."
But Rutherford insists keeping up the fight isn't easy - because the court battle, which began following their split in 2008, has cost her big: "I'm gonna obviously appeal this. I have to keep working to afford the appeal to do this. I've been through pretty much everything now..."