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Kelly Rutherford's bitter custody battle gets nastier as woman comes forward claiming her daughter Helena, eight, nearly drowned while in father's care

Published: 21:43 EST, 12 August 2015 | Updated: 00:51 EST, 13 August 2015

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As Kelly Rutherford lashes out at the New York judge who ordered her children returned to their father in Monaco, an old report about a near-drowning incident involving daughter Helena has resurfaced.

People cited on Wednesday a 2012 affidavit used as part of Rutherford's initial custody case filing in which a woman claimed she had to rescue Helena from a hotel swimming pool while on holiday in Bermuda with her father Daniel Giersch and brother Hermes.

Layla Lisiewski, who lives in Connecticut, told People this week she remembered Giersch, now 41, was visibly upset after the incident at Tuckers Point Hotel and Spa on May 6, 2012.

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Old claim: A court document has surfaced that says Kelly Rutherford's daughter Helena, pictured right with her mom and brother this summer, almost drowned in May 2012 while in the care of dad Daniel Giersch, left

Rutherford found out what had happened because a friend of Lisiewski lived in the same building as the former Gossip Girl actress and let her know about it.

Rutherford then contacted Lisiewski directly and the former Merrill Lynch trader turned artist swore out an affidavit about the incident which was filed as part of court documents in Rutherford's 2012 custody case against Giersch.

The near-drowning story is published by People on the same day that Rutherford, whose children flew out of the US Tuesday night to be reunited with their father in Europe, released a stinging statement accusing Judge Ellen Gesmer of being cruel, abusive, incompetent and acting outside of the law.

Kelly Rutherford at a loss for words after custody hearing

Distraught: The actress, 46, was visibly upset as she left court in New York on Tuesday after a judge ordered her two children with Giersch be returned to their father in Monaco

Lisiewski's affidavit, exclusively obtained by People, described how she had noticed a little blonde girl and her brother near the hotel pool playing with little squirt bottles.

She assumed that the man she had seen previously with the children and who was also sitting poolside was their father.

According to the affidavit, Lisiewski noticed the little girl walk toward her side of the pool, apparently to fill her squirt bottle.

She turned away for a moment and heard a splash, and when she looked back, the little girl was in the water.

Dispute: Rutherford, seen with her attorney, has been fighting for sole custody of Hermes, six, and Helena, three, since 2012. An affidavit from a Connecticut woman included in original court filings surfaced Wednesday

People described what happened next according to Lisiewski in her affidavit: 'In a split second, I looked toward 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 fall into the pool. There was no other sound other than the splash, since Helena was completely submerged at this point,'

'I grabbed Helena and pulled her out of the water. 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.'

Her statement went on: 'As soon as the man [Giersch] saw me holding his daughter, who was still whimpering, he jumped over and ran to us. He appeared terrified and took Helena from my arms.'

Desperate: The former Gossip Girl star was accused by her ex-husband's attorney of child abduction, extortion and false statements after she ignored a court order last week to return her children to their father

Kelly Rutherford speaks out to keep her children in America

After the actress, 46, defied a court order last week to send the two children back to Giersch as scheduled after a summer visit, she was summoned to appear in court in New York with the children on Tuesday.

Gesmer ordered Helena, six, and Hermes, eight, to be turned over to their paternal grandmother, who had flown to the city, and returned to their father in Monaco. The children flew back to Nice with their grandmother on Tuesday night.

Giersch's attorney, speaking after the ruling was handed down, accused Rutherford of 'child abduction, extortion and false statements' and said his client would 'continue to protect the children from any harm and any media exposure.'

Happier times: Rutherford and the German businessman married in 2006 and are seen here in 2008, before their split. They've been engaged in a bitter custody battle over their two children for several years

Rutherford married Giersch in 2006 while pregnant with Hermes, and she filed for divorce in 2008 while pregnant with Helena.

In 2012, the California Superior Court ruled the parents should maintain joint custody of the children and that since Giersch is unable to travel to America because of visa problems, Helena and Hermes should live in France with him, with their mother travelling to visit them.

Rutherford has been trying to win sole custody of the children ever since.

In her bitter statement Tuesday, she said the decision to send the children back to live with their father in Europe 'was the most cruel act against a child I have ever witnessed in my entire life.'

Media spotlight: Rutherford has waged a high-profile media campaign to argue for her rights to have her children with her in the US

'Never in my worst nightmares did I envision the children's father to angrily, and unlawfully take legal action in New York to cause my children further pain, by demanding their forced exile beyond an already too long period of three years,' she continued in her statement.

'Nor did I envision a judge [of] my own country violating the Constitution and adding to my children's suffering by indulging his tactics.'

An attorney for Giersch, Ira Garr, told the media that the kids didn't seem to miss a beat as they were handed over to their father's mother.

'They were happy. They kissed their mother goodbye. They were happy to see their grandmother. They had smiles on their face,' he said.

A custody hearing has now been set for September 3 in Monaco.

Barred from America: Giersch had his US visa revoked after Rutherford claimed he was involved in drugs and weapons dealing. A California court ruled in 2012 that since he was unable to reside in America, the children should live with him in Europe and Rutherford should travel there to spend time with them

'Gossip Girls' star Kelly Rutherford's kids to stay in Monaco