'Gossip Girl' actress Kelly Rutherford unfortunately had a big setback according to an expert custody lawyer in the middle of her custody case to have sole custody of her two children from ex-husband Daniel Giersch.

The custody battle has been going on for several years now and their two kids, 8-year-old son Hermes and 6-year-old daughter Helena, have been living with their father in Europe since 2012. Meanwhile the two kids are with their mother Rutherford for the whole of summer and Rutherford's recent actions of not taking back her children to Giersch led his team to file for a writ of Habeas Corpus.

Rutherford was ordered to bring her children to the New York courtroom and some experts speculate that the trio might be ordered to hop on the plane going to Monaco where Giersch resides this coming Tuesday night.

This all happened when Rutherford's legal team released a statement saying that Giersch can visit his children in America just like how she did for the past three years going back and forth to Europe.

"Mr. Giersch can come to America on his German passport and visit the children here, just as Kelly has traveled back and forth to Europe on her U.S. passport to visit the children there for the past three years," Rutherford's attorney, Wendy Murphy, said in a statement. "Kelly and the children have been very patient with Mr. Giersch. He should do the right thing, honor his agreement, and protect the children from the trauma of needless litigation."

So Rutherford's previous defiance of a court order may have just endangered her chances of getting her children back. "You can have some level of sympathy for her, if she's feeling desperate," divorce attorney Michael Stutman, head of the Family Group at Mischon de Reya New York, tells E! News, adding that it seems highly unlikely that Rutherford made her decision "with the advice of counsel to willfully disobey a lawful court order."

He says, "It's hard to imagine she had any legal advice" when she opted to not bring the kids back to their dad after they spent their summer vacation with her in the United States."

Rutherford was seen to have acted out of passion to be with her children when she released the statement saying "I pray that officials in this country and in Monaco will agree that three years in exile is a very long time in a child's life, and that my children have a right to remain, once and for all, in the United States," Rutherford said Friday night in a statement.

So it is up to Rutherford tomorrow if she will be bringing back her children to their current residency or once again defy the authorities.