Attorneys Say Catherine Kassenoff’s Case—and 1000’s of Others—Violate U.S. Structure

When legal professional Harold Burke referred to as Catherine Kassenoff the day earlier than she died, he knew she was overseas.

“I spoke to her for 2 hours on Friday,” Burke informed me final week. “I stated to her, ‘Judging from the switching tones, you’re abroad. Are you in a protected place?’” not realizing Kassenoff had gone to a Swiss assisted-suicide facility. “She stated, ‘Sure, I’m. I’m very comfy.’”

Burke was one in all a number of attorneys on Kassenoff’s group, a part of a authorized battle that began in 2019 when two daughters alleged Allan Kassenoff bodily abused one in all them. He filed for divorce, claimed she manipulated the ladies, was unstable, and obtained short-term sole custody after submitting an ex parte “emergency” movement. Catherine spent 4 years preventing—unsuccessfully—to get them again. Throughout her final name with Burke, she was distraught as the newest ruling terminated, but once more, all contact together with her daughters. He assured her they might combat the choice “similar to Sylvia did” and thought he had satisfied her to hold on. 

He was unsuitable. 

Catherine was out of endurance—because of the setback in her custody battle and a brand new most cancers analysis—and knowledgeable supporters Saturday, Might 27, that she determined to take her life. Ms. has obtained the U.S. State Division’s Report of Loss of life confirming that Kassenoff died in Liestal, Switzerland, on Might 27, and her ashes are within the custody of the executor of her property.

An skilled legal professional, and former particular counsel to New York Governor Kathy Hochul (D), Catherine Kassenoff blamed the court docket system for her dying, writing:

“It’s a predatory system that capabilities in darkness – by means of ‘gag’ orders just like the one in my case, by means of a publicly-inaccessible docket, by means of a closed courtroom and thru ex parte ‘short-term’ orders which can be in place for years.”

Burke and different attorneys agree with Catherine’s evaluation and are sick over her dying. They’re taking over the combat for court docket reform on behalf of her and different moms, they stated, as a result of what’s occurring violates federal civil rights regulation: Courts routinely deny girls’s constitutional proper to due course of—a proper the U.S. Supreme Courtroom has said contains “a chance to be heard”—and a few have misplaced their kids due to it.

Burke additionally championed the case of Sylvia Lee, a New York legal professional who misplaced custody of her kids in 2012 after her husband claimed to “concern for his or her security”—a scenario strikingly much like Catherine’s. On enchantment, Burke claimed, “Apart from uncontested circumstances or these involving stipulated details, New York regulation doesn’t authorize any court docket to make ultimate little one custody determinations within the absence of a full evidentiary listening to.” 

He argued Lee’s 14th Modification proper to due course of was violated for the reason that court docket claimed it had “ample, related info” in lieu of admitted proof—utilizing a scheme Burke wrote “can solely be described as a trial by affidavit,” which consisted of attorneys’ inadmissible statements and rumour from affidavits and knowledgeable reviews “untested for competency.”

New York’s Second Appellate Division upheld Lee’s authentic 2013 trial court docket ruling, however Burke and Lee saved going. And, in 2016, the New York Courtroom of Appeals reversed the choice—a monumental win for them.

“Sylvia knew it was too late for her scenario however wished to strive to verify what occurred to her didn’t occur to anybody else,” Burke stated. Lee died in 2021 from a congenital mind situation. 

Burke admitted he was naive to assume the ruling would shield future New York girls (and males) in comparable conditions—as a result of it’s been largely ignored.

The S.L. v. J.R. decision blasted New York’s supreme court docket (which handles household court docket circumstances and heard Kassenoff’s as nicely), saying the appellate division’s assist of the custody ruling “was an error” and the trial court docket relied on “rumour statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility had been untested by both celebration.”

The very best curiosity of the kid determinations ought to solely be made after a full and truthful listening to, the Courtroom of Appeals said: “Given the targets of stability and permanency, in addition to the load of the pursuits at stake, the societal value of even an occasional error in a custody continuing is sizeable.” 

The opposite aspect will say mother is loopy and mother goes to flee the nation, whereas mother isn’t there to defend herself, so she loses custody. … She should wait three, six, 9 months—and even longer—to be heard. It’s undoubtedly abuse.

Paul Griffin, authorized director of Youngster Justice, Inc.

“It’s a system that operates in darkness,” stated household regulation legal professional Timothy Tippins, who teaches at Albany Legislation Faculty and sits on Governor Kathy Hochul’s 2021 Blue Ribbon Commission on Forensic Custody Evaluations. “Any ex parte aid granted is meant to be reserved for an emergency as a result of ex parte is a denial of due course of. The court docket is meant to expeditiously conduct an evidentiary listening to, and allegations ought to be examined with cross-examination. Sadly, what occurs is the short-term turns into everlasting by inertia. There is usually a listening to two years later, and there’s an entire new established order. So the short-term association has the persuasive ‘stability for the kid’—and is tough to reverse.”

Sources informed Ms. off the file that this “denial of due course of” was unhealthy earlier than the pandemic, however has gotten even worse throughout and after, as courts’ backed up calendars imply they have a tendency to resolve circumstances extra shortly.

This, coupled with the outsized energy given to forensic custody evaluators, has led to a harmful miscarriage of justice and ongoing constitutional violations.

“By the point the case goes to trial, it’s largely determined as a result of the forensic report is considered by the decide earlier than testimony begins,” stated Ronald Bavero, a retired Westchester County, N.Y., matrimonial legal professional who labored on this similar court docket system for almost 40 years and wrote a book about it. “It’s not simply validation that the forensic interviewed the events, kids and important contacts—it’s the product of the maid, instructor and disgruntled woman down the road. All of this info, basic rumour, now makes its means into the report. It’s not examined by cross examination and nobody swears it’s true.”

Many ladies, and household court docket reform advocates, name this an abuser’s modus operandi: They receive an emergency safety order and infrequently custody of kids—then that “short-term” order turns into everlasting. The forensic evaluator’s report later validates the established order. Excessive-conflict litigants usually say their partner is popping their kids towards them, citing “parental alienation syndrome,” a concept lately discredited by the United Nations. Catherine Kassenoff spent years, and almost $1 million, attempting to counter the narrative that she was harmful and unhinged so she might see her three ladies. 

In her ultimate letter, Kassenoff took intention on the household court docket system’s allowance of “ex parte” purposes and Non permanent Orders of Safety (TOPs).

As a result of ex parte motions are “emergency” in nature, they’re usually heard with out the opposite celebration current and even notified:

“In July 2020, Dimopoulos [Allan Kassenoff’s attorney] requested for – and received from Choose Koba – an ex parte short-term order of safety (“TOP”) in favor of the youngsters (who had been put of their abusive father’s custody based mostly on the forensic report of Abrams). He alleged that I needed to be subjected to a TOP as a result of I posted on Fb a photograph of residing out of my automotive, after being faraway from my residence by advantage of the ex parte eviction order he had obtained in March 2020. He didn’t cease there. For the subsequent a number of years, he obtained TOP after TOP on an ex parte foundation. All of them had been vacated and none was ever transformed to a everlasting order of safety…Essentially the most egregious instance of misuse of TOPs towards me was when Allan and Dimopoulos obtained a “one mile keep away” order, on an ex parte foundation, in September 2021 requiring me to vacate my very own house in Larchmont and stay within the basements and on the couches of mates – with out a lot as a listening to.”

This isn’t only a New York drawback. Advocates like Paul Griffin, authorized director of Child Justice, Inc. in Maryland, stated he will get complaints about comparable due course of violations throughout America.

“The opposite aspect will say mother is loopy and mother goes to flee the nation, whereas mother isn’t there to defend herself, so she loses custody,” Griffin stated. “They don’t set a date for a listening to and mother is caught with the established order. Her legal professional recordsdata however she should wait three, six, 9 months—and even longer—to be heard. It’s undoubtedly abuse.” 

Griffin was a litigator for 20 years earlier than taking his place to assist protecting mother and father in custody circumstances full-time eight years in the past.

“Once I first heard about this ex parte drawback, I believed, ‘No court docket does that,’ however I used to be unsuitable. Normally, the child had higher be near bleeding and in emergency hazard to disclaim a mom due course of rights however courts abuse that.”

Has it all the time been this fashion, or is it getting extra egregious? 

“I’m at almost 50 years of doing this … and the scenario in our court docket system has by no means been worse,” Tippins stated. “In a big sense culturally and politically I believe we’re residing in a post-constitutional period. They deal with the structure like a goddamn suggestion. It’s a mandate. It’s the one factor that separates us from being a banana republic.”

The American Civil Liberties Union has determined to take up this trigger. A landmark June 2021 court docket resolution (Crawford v. Ally) held that New York should present an evidentiary listening to to anybody charged with against the law earlier than they face an order of safety that will take away them from their residence or separate them from their households. Nonetheless, the New York Civil Liberties Union (NYCLU) stated it realized the Workplace of Courtroom Administration (OCA) marked a memorandum “Confidential: Inner Use Solely,” instructing judges that “courts ought to resist—except completely mandatory and applicable—something approaching a full testimonial listening to.” The memo goes as far as to say that the ruling doesn’t imply witnesses and non-hearsay testimony are mandatory. 

The NYCLU filed a FOIL (Freedom of Data Legislation) request for 10 years of OCA documents addressing claims for evidentiary hearings. Initially, the OCA deliberate to conform, but it surely has now missed the six-month deadline and as an alternative appealed the choice.

“It’s essential that the influences behind this decision-making, which has monumental penalties for these on the mercy of the courts, are clear to the general public,” stated Daniel Lambright, NYCLU senior workers legal professional.

As for Burke and different attorneys who’re outraged by Catherine’s case?

“Efforts are underway to pursue applicable recourse by means of the state and federal courts,” stated Burke. He referred to as for the Division of Justice’s Civil Rights Division to step in, since this injustice is widespread and “works to uphold the civil and constitutional rights of all individuals in america, notably a few of the most weak members of our society.”

Sure, a few of these “weak members” are girls—however they’re additionally the youngsters who’re traumatized by dropping contact with a loving mother or father and, in some circumstances, compelled to stay with their abuser. 

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