The celebrity custody battle that keeps becoming more painful.

Actress Kelly Rutherford has just been ordered to return her children to the custody of a man she claims is an unfit parent.

Gossip Girl star Rutherford, 46, and her ex-husband Daniel Giersch, 41, have been engaged in a custody battle over their two children, Hermes, 8, and Helena, 6, since 2009.

One day after Rutherford was ordered to return the children to Giersch in Monaco, People magazine uncovered an affidavit filed in 2012 that claims Helena, then three, almost drowned while in Giersch’s care.

Rutherford with her two kids Hermes and Helena. Image via Instagram.

Layla Lisiewski, from Connecticut, said she saw the little girl fall into a pool in Bermuda, unobserved by her dad.

“I saw that Helena had somehow fallen into the pool and was underwater,” Lisiewski said in the affidavit, reports People.

“In a split second, I looked towards the man, whom I assumed was the children’s father, and then around the pool to locate a staff member. No one seemed to have noticed Helena fell into the pool.”

Lisiewski says she jumped into the pool and pulled the toddler out.

“Her eyes were huge with shock and fear. I was concerned that her mouth was closed; she was not gasping for air. I instinctively and firmly patted her in the middle of her back, which caused her to throw up quite a bit of water. Helena started whimpering, which relieved me, as I thought at least I knew she was breathing,” she alleges.

Rutherford with Giersch and their son Hermes before their 2009 split.

Lisiewski says Giersch only became aware of his daughter’s near-drowning when he noticed that she was holding the toddler.

“He appeared terrified and took Helena from my arms,” she said, adding that he was “panicking” and “asked a lot of questions like how long she was underwater.”

She asked Giersch why his daughter wasn’t wearing floaties, and he told her that she didn’t like wearing them.

Rutherford kisses her daughter Helena. Image via Instagram.

Rutherford had previously ignored a court order from Monaco to return the kids to their German businessman father.

A New York Supreme Court judge on Wednesday upheld the order and according to People, Giersch’s mother, Rosita Giersch, left the courtroom with the two children to return to Europe.

In May, Rutherford won the right to have her kids back for the summer, but the new ruling means they will return to their father permanently.

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