Kelly Rutherford's Custody Battle Heats Up

Kelly Rutherford's Custody Battle Heats Up-photo

In a Santa Monica, California, divorce court, Kelly Rutherford and her estranged husband Daniel Giersch testified in what is turning into a tense custody dispute over the couple's son.

Two-year-old Hermes was the focus of Rutherford, 40, and Giersch's Friday in court. Kelly wants to bring her son to New York while she continues work on the CW's Gossip Girl.

Us magazine is reporting that the Santa Monica court has decided that Kelly should be able to take her son to New York.

That ruling cannot be sitting well with her husband, who thinks the child should stay with him in Los Angeles.

"Hermes doesn't feel comfortable in New York," German businessman Giersch, 34, testified, according to People.

"He's in constant fear, not knowing what's going on. It's not easy there, it's not safe, it's noisy. As a father you see whether a child is comfortable or not."

Giersch added that he was with his son "90 percent" of the time, taking him to the playground, zoo, museums, and more, while Rutherford was working on Gossip Girl.

He also believes that his wife has a preoccupation with shopping, manicures and pedicures.

"It's not just me, I mean, he gets his eyebrows waxed," retorted Rutherford, who is currently pregnant with the couple's second child.

She also said, "If I'm being asked to choose my career over my son, I choose my son. [But] I need this job to pay my bills, legal bills, and Daniel has offered no support."

Check out this Hollywood.TV video of Kelly Rutherford and Daniel Giersch arriving in court yesterday:

Testimony from Rutherford resumed this morning at 9 a.m.

Kelly might have looked less stressed if she had known the judge would allow her to take Hermes with her to New York.

The Gossip Girl actress filed for divorce from Giersch on December 30, citing irreconcilable differences.

They were married in August 2006.

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