When lawyer 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 might be abroad. Are you in a protected place?’” not understanding Kassenoff had gone to a Swiss assisted-suicide facility. “She stated, ‘Sure, I’m. I’m very comfy.’”
Burke was one among 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 among them. He filed for divorce, claimed she manipulated the women, was unstable, and obtained non permanent sole custody after submitting an ex parte “emergency” movement. Catherine spent 4 years combating—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 may struggle the choice “identical to Sylvia did” and thought he had satisfied her to hold on.
He was fallacious.
Catherine was out of endurance—because of the setback in her custody battle and a brand new most cancers prognosis—and knowledgeable supporters Saturday, Could 27, that she determined to take her life. Ms. has obtained the U.S. State Division’s Report of Dying confirming that Kassenoff died in Liestal, Switzerland, on Could 27, and her ashes are within the custody of the executor of her property.
An skilled lawyer, and former particular counsel to New York Governor Kathy Hochul (D), Catherine Kassenoff blamed the court docket system for her demise, writing:
“It’s a predatory system that capabilities in darkness – by ‘gag’ orders just like the one in my case, by a publicly-inaccessible docket, by a closed courtroom and thru ex parte ‘non permanent’ orders which are in place for years.”
Burke and different attorneys agree with Catherine’s evaluation and are sick over her demise. They’re taking over the struggle for court docket reform on behalf of her and different moms, they stated, as a result of what’s occurring violates federal civil rights legislation: Courts routinely deny ladies’s constitutional proper to due course of—a proper the U.S. Supreme Court docket has said contains “a possibility to be heard”—and a few have misplaced their kids due to it.
Burke additionally championed the case of Sylvia Lee, a New York lawyer 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 info, New York legislation doesn’t authorize any court docket to make remaining youngster custody determinations within the absence of a full evidentiary listening to.”
He argued Lee’s 14th Modification proper to due course of was violated because the court docket claimed it had “satisfactory, related data” 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 professional experiences “untested for competency.”
New York’s Second Appellate Division upheld Lee’s unique 2013 trial court docket ruling, however Burke and Lee saved going. And, in 2016, the New York Court docket of Appeals reversed the choice—a monumental win for them.
“Sylvia knew it was too late for her scenario however needed 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 suppose the ruling would defend future New York ladies (and males) in related conditions—as a result of it’s been largely ignored.
The S.L. v. J.R. resolution blasted New York’s supreme court docket (which handles household court docket circumstances and heard Kassenoff’s as effectively), 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 social gathering.”
The perfect curiosity of the kid determinations ought to solely be made after a full and honest listening to, the Court docket of Appeals said: “Given the targets of stability and permanency, in addition to the burden of the pursuits at stake, the societal price of even an occasional error in a custody continuing is sizeable.”
The opposite facet 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 positively abuse.
Paul Griffin, authorized director of Little one Justice, Inc.
“It’s a system that operates in darkness,” stated household legislation lawyer Timothy Tippins, who teaches at Albany Regulation Faculty and sits on Governor Kathy Hochul’s 2021 Blue Ribbon Fee on Forensic Custody Evaluations. “Any ex parte reduction 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 needs to be examined with cross-examination. Sadly, what occurs is the non permanent turns into everlasting by inertia. There could be a listening to two years later, and there’s an entire new establishment. So the non permanent association has the persuasive ‘stability for the kid’—and is difficult to reverse.”
Sources informed Ms. off the document 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 seen by the decide earlier than testimony begins,” stated Ronald Bavero, a retired Westchester County, N.Y., matrimonial lawyer who labored on this similar court docket system for almost 40 years and wrote a guide about it. “It’s not simply validation that the forensic interviewed the events, kids and important contacts—it’s the product of the maid, trainer and disgruntled woman down the road. All of this data, traditional rumour, now makes its manner 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 get hold of an emergency safety order and sometimes custody of kids—then that “non permanent” 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 in opposition to them, citing “parental alienation syndrome,” a concept not too long ago 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 remaining letter, Kassenoff took goal on the household court docket system’s allowance of “ex parte” functions 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 social gathering current and even notified:
“In July 2020, Dimopoulos [Allan Kassenoff’s attorney] requested for – and bought from Decide Koba – an ex parte non permanent order of safety (“TOP”) in favor of the kids (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 automobile, after being faraway from my dwelling by advantage of the ex parte eviction order he had obtained in March 2020. He didn’t cease there. For the following 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…Probably the most egregious instance of misuse of TOPs in opposition to 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 condominium in Larchmont and reside within the basements and on the couches of associates – with out a lot as a listening to.”
This isn’t only a New York downside. Advocates like Paul Griffin, authorized director of Little one Justice, Inc. in Maryland, stated he will get complaints about related due course of violations throughout America.
“The opposite facet 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 lawyer information however she should wait three, six, 9 months—and even longer—to be heard. It’s positively abuse.”
Griffin was a litigator for 20 years earlier than taking his place to assist protecting dad and mom in custody circumstances full-time eight years in the past.
“Once I first heard about this ex parte downside, I believed, ‘No court docket does that,’ however I used to be fallacious. 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 at all times 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 feel 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 a criminal offense earlier than they face an order of safety that will take away them from their dwelling or separate them from their households. Nevertheless, the New York Civil Liberties Union (NYCLU) stated it discovered the Workplace of Court docket Administration (OCA) marked a memorandum “Confidential: Inside Use Solely,” instructing judges that “courts ought to resist—except completely vital and acceptable—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 vital.
The NYCLU filed a FOIL (Freedom of Data Regulation) request for 10 years of OCA paperwork addressing claims for evidentiary hearings. Initially, the OCA deliberate to conform, however it has now missed the six-month deadline and as a substitute 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 lawyer.
As for Burke and different attorneys who’re outraged by Catherine’s case?
“Efforts are underway to pursue acceptable recourse by 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, significantly among the most weak members of our society.”
Sure, a few of these “weak members” are ladies—however they’re additionally the kids who’re traumatized by dropping contact with a loving mum or dad and, in some circumstances, pressured to reside with their abuser.
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