Kelly Rutherford: "I'm Optimistic" about Custody Case Ruling

Kelly Rutherford and her estranged husband Daniel Giersch took the stand Thursday afternoon in their increasingly heated custody case. A judge at the California Superior Court in Santa Monica ordered them to testify so that he could decide whether Rutherford, 40, can take their son Hermes, 2, to NYC -- where she shoots Gossip Girl -- through March 2009.

"I'm okay. It's a lot to do. I'm optimistic," Rutherford said after the hearing adjourned for the day. "The show has been really great and supportive -- and family and friends here. It's helped a lot."

Although she refused to address allegations brought up by Giersch, she does say she wants to be fair to both parties and even mentioned gradually offering Giersch overnight visitation rights in court.

"I want what's best for Daniel and what's best for the family ultimately," she said.

The hearing will continue Friday morning. After lawyers finish cross-examining Rutherford and once closing arguments are given, Judge Michael Levanas said he will rule on the matter.

"The parties are in a difficult situation," Levanas said in court. "Certain things are certain. They both have a good relationship with their son." He went on to say that both Rutherford and Giersch were good parents.

Giersch wanted the judge to prohibit Rutherford -- who's four months pregnant with their daughter -- from taking the boy, claiming that she has anger issues. He has alleged that she once threw a laptop at him and "tried to hit him with an open fist." (Her rep denies those claims. Rutherford has also alleged that she had to call the police on Giersch because he frightened her.)

Check out photos of Hollywood's nastiest splits.

During Thursday's hearing, Rutherford was asked if partial custody would be a strain on the actress.

"I think being away from my son would be the most stressful," she said. "It is very rare that I have spent an entire day away from him."

In a declaration filed with the court on Wednesday, Giersch attacked Rutherford's ability to care for their son. He claimed she doesn't properly change Hermes' diapers and has been preventing Giersch from seeing his son "presumably to punish me." He also said he was against her signing a recent contract with Gossip Girl.

"She signed her current contract for her show without my consent, and in fact with my expressed disapproval," he wrote.

During the hearing, Rutherford mentioned that she would leave Gossip Girl if necessary.

"If i'm being asked to choose that over my son, I'd choose my son," she said.

See then-and-now photos of the Gossip Girl cast.

His declaration also revealed that Rutherford has been offered a role in a new CW revival of Melrose Place.

"[Rutherford] told me before we separated that she had been offered a part on that show, which will be filming in Los Angeles, and she would be able to change shows, and continue to work for the same employer but in Los Angeles, he wrote.

In court Thursday, Rutherford's lawyer, Lance Spiegel, asked Giersch if he thought the idea of Rutherford flying back and forth from L.A. to New York would be a strain on her pregnancy, Giersch replied, "I think it will reduce the stress."

Giersch, who says he spends 95 percent of his time with Hermes, described in detail how he took care of his son while living in a hotel and complained of the "flying in, flying out" lifestyle.

Outside the courtroom, Rutherford (dressed in a black sweater and black pants), said "the love of my child and the child that's on the way" is what's getting her through the ordeal.

"I'm trying to just think about my kids and the future," she said. "I am thankful to have a job in this environment and be a mother at 40."

Rutherford, who drove herself to court, thanked the crowd of reporters for their support.

Any pregnancy cravings for the mom-to-be?

Cupcakes, she said. "And a little bit of Chinese food!"



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