text: A lawsuit filed by former Gossip Girl actress Kelly Rutherford attempting to have a judge order her kids to return to the U.S. from their father's custody in France has been dismissed once and for all. The case was dismissed with a court order stating that it did not have the jurisdiction to force the kids, son Hermes, 8, and daughter Helena, 5, to come back to the United States. Rutherford, 46, claims her children were illegally deported to France when a California Court awarded custody to her ex-husband Daniel Giersch, 40, and she pleaded for the order to be reversed. Scroll down for video . Kelly Rutherford, pictured with her children, Hermes and Helena, during a party in the Hamptons in August 2013, was shut down by the courts again in a final plea to gain custody of her children . Rutherford's lawsuit stating that her children were illegally deported from the United States was dismissed once and for all by a New York court . She claimed that no other U.S. court has ordered children to live in another country when they have an able parent in the United States. Giersch, who is a German citizen residing in France, was deported from the U.S. over allegations of visa fraud. But the dismissal of her case states that Rutherford failed to argue why the federal court should intervene in her custody dispute with Giersch. 'Petitioners allege that the California state court's custody order had the effect of deporting the children in violation of their Fourteenth Amendment right to remain in the United States,' the document reads. The document added: 'There is no authority establishing the unconditional right of minor children to reside in the United States when one of their custodial parents lives abroad. 'Likewise there is no "plainly defined and peremptory duty" requiring Respondents to interfere with the custody order - nor is there, as Petitioners contend, a general affirmative duty on federal agencies requiring them to intervene against what is claimed to be unconstitutional state action.' After divorcing in 2010, Rutherford and ex-husband Daniel Giersch went through a nasty custody battle which ended with Giersch being awarded custody while the children were to visit Rutherford on vacations . Kelly left Daniel Giersch in 2009 while she was pregnant with their second child after the German businessman's visa was revoked. A judge awarded him custody of the children in 2012 . Further, the court states 'the children have not been deported; they retain their United States citizenship and, once they reach the age of majority, they will be free to choose where to reside. 'There is, therefore, no non-frivolous constitutional question, only an attempt to seek federal judicial intervention in a state court custody dispute' The order affirmed the original order and said it would be improper for the federal court to intervene in Rutherford's custody battle. Because of this, there will be no intervention and the appeal will be dismissed. A California court ruled two years ago that the children should live in France with ex-husband Daniel Griesch, who she divorced in 2010 after four years of marriage. Rutherford has said that the court in Monaco, where Giersch lives, decided on a new custody order that lets her only see her children on holiday and during the summer. It has left Rutherford emotionally exhausted, desperate and having filed for bankruptcy with $2million in debt after spending all her earnings from Gossip Girl on legal fees and flights to France to see her children. In it's dismissal of her case, the court said it failed to argue why the federal court should intervene in the custody dispute . Daily Mail Online revealed in August that Rutherford had filed a lawsuit at the Federal Appeals Court of the Southern District of New York in Manhattan on behalf of herself and her children. She sued the U.S. government, including Attorney General Holder and Jeh Johnson, Secretary of the Department of Homeland Security, because she claims that an earlier ruling by a California Superior Court judge that her children should live in France was unlawful. Only federal courts can deal with matters of deportation. she argues. She wanted the US District Court in New York court to grant her ‘temporary emergency authority’ over her children and an order saying the previous ruling was ‘unconstitutional’. The U.S. Department of Justice and the Department of Homeland Security said on November 24 that Rutherford's case was nothing more than her being dissatisfied with the result of the child-custody proceeding. The departments demanded on that her appeal be dismissed and said she's forcing the departments to become part of something they were never involved in. Rutherford argued her case in a New York court on March 18, but the appeal court shut down her plea and ordered the original order to remain in place.
target: She claims a California judge deported her children illegally in 2012 .
  California court ruled Rutherford's ex-husband Daniel Giersch could take the children to live in France and spend vacations with in the US .
  Her petition to custody battle was dismissed in court last August .
  But in one final attempt she put in another appeal, which was dismissed .
  Court order states that it did'nt have jurisdiction to force kids to live in US .
  The permanent dismissal says that Rutherford failed to argue why the federal court should intervene in custody case .