Kelly Rutherford, Husband to Take the Stand in Custody Case

The two -- who attended a hearing Wednesday in Santa Monica, Calif. -- will testify on Thursday. A judge will then decide whether Rutherford, 40, can take their son Hermes, 2, to NYC -- where she shoots Gossip Girl -- through March 2009.

Giersch wants 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.

In court, Rutherford's lawyer, Lance Spiegel, said Rutherford would "suffer" if she were not able to bring her son with her because she is "subject to contractual obligations that require her to be present in New York."

Said Spiegel, "This child has never been away from her for one night."

But Giersch's attorney, Fahi Takesh-Hallin, argued that it is in the child's best interest for the boy to stay "with his father and not disrupt the routine of his daily life.”

Said Hallin, "He has been the primary caretaker day-in and day-out."

Spiegel asked the court to close the hearing to the media; the judge said he would make the decision on Thursday.

Outside the courtroom, Rutherford (in rolled-up jeans and a yellow-printed blouse) had “no comment" when stopped by reporters.

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

Giersch only said, "I am not dangerous."

Both want sole custody of Hermes, with monitored visitation.

DISCLAIMER: This posting was submitted by a user of the site not from The Insider editorial staff. All users have acknowledged and agreed that the submission of their story and its contents is in compliance with our Terms of Use.