Actress Kelly Rutherford has been dealt a blow in her custody battle with ex-husband Daniel Giersch after a judge ruled he is no longer required to transport their children from his home in Monaco to her residence in New York.

The former Gossip Girl star, who was declared bankrupt in June (13), has been flying back and forth to Europe since last year (12) when a judge ruled Hermes, six, and Helena, three, should live with their businessman father in France.

Rutherford has been fighting the ruling in the courts, while making at least 40 trips abroad to visit her children, but a judge has now sided with Giersch and determined he is no longer responsible for sending their children to the states.

However, Rutherford is still allowed to travel to Europe and pick the children up to bring them to New York.

Rutherford, who has been working as her own attorney, is planning to appeal the ruling.

She tells, "It strikes me as outrageous and unconstitutional that children can be effectively deported in order to accommodate their exiled father, with no proof of why he can't be in the U.S."

Giersch's American visa was revoked in August 2012 for unknown reasons.

Rutherford and Giersch divorced in 2009.