The actress created an onlineWhite House petition Tuesday asking for a federal order to bring her two children back to the United States.
As of Thursday afternoon, the petition had nearly 7,000 out of the 100,000 signatures it needs to reach by May 28.
“This is a political problem for President Obama and a constitutional problem for the courts,” her attorney, Wendy Murphy, tells PEOPLE. “The president recently issued an executive order declaring that children born in this country to illegal immigrant parents must be allowed to remain in this country. Mr. Obama specifically talked about the importance of mothers and children being allowed to stay together in America. How could Kelly and her children not be entitled to at least the same legal protections?”
Rutherford, 46, has been battling ex-husband Daniel Giersch for about six years. Though they technically have joint custody, their son Hermes, 8, and daughter Helena, 5, have been living with the German businessman in France ever since 2012, when a California judge ruled that Rutherford would have to fly back and forth to see them because Giersch’s work visa was revoked in the United States.
“I remember when she made the ruling, I just thought, ‘There’s something wrong here,” the former Gossip Girl star told PEOPLE earlier this month. “Not because of their father and I or anything – I’ve always wanted my kids to have a relationship with him, and I’ve really only encouraged that all along. When I went into court, I never asked for money, and I never asked for full custody. I just wanted what was right for them and their well-being moving forward.”
Now, she is appealing directly to the president.
“The petition exposes an important and very embarrassing situation for Mr. Obama,” Murphy says, “because if Kelly’s children are not rescued from involuntary expatriation to France, it would mean the President believes non-citizens are entitled to greater rights than citizens in this country.
“The federal court in New York that is currently reviewing this case has acknowledged this is an unprecedented situation, which means a ruling against Kelly’s children would put countless defenseless American children at risk for being shipped like luggage to live in a foreign country where they have no citizenship, and no rights as Americans.”
Giersch’s lawyers have said he is not commenting on the ongoing custody battle to “protect the children from any negativity.”