Lawyers Say Catherine Kassenoff’s Case—and Thousands of Others—Violate U.S. Constitutional Right to Due Process

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Allan Kassenoff now has custody of his and Catherine Kassenoff’s three daughters. (Jessie Watford)

When attorney Harold Burke called Catherine Kassenoff the day before she died, he knew she was abroad.

“I spoke to her for two hours on Friday,” Burke told me last week. “I said to her, ‘Judging from the switching tones, you are overseas. Are you in a safe place?'” not knowing Kassenoff had gone to a Swiss assisted-suicide facility. “She said, ‘Yes, I am. I am very comfortable.'”

Burke was one of several lawyers on Kassenoff’s team, part of a legal battle that started in 2019 when two daughters alleged Allan Kassenoff physically abused one of them. He filed for divorce, claimed she manipulated the girls, was unstable, and obtained temporary sole custody after filing an ex parte “emergency” motion. Catherine spent four years fighting—unsuccessfully—to get them back. During her last call with Burke, she was distraught as the latest ruling terminated, yet again, all contact with her daughters. He assured her they could fight the decision “just like Sylvia did” and thought he had convinced her to hang on. 

He was wrong. 

Catherine was out of patience—due to the setback in her custody battle and a new cancer diagnosis—and informed supporters Saturday, May 27, that she decided to take her lifeMs. has obtained the U.S. State Department’s Report of Death confirming that Kassenoff died in Liestal, Switzerland, on May 27, and her ashes are in the custody of the executor of her estate.

An experienced attorney, and former special counsel to New York Governor Kathy Hochul (D), Catherine Kassenoff blamed the court system for her death, writing:

“It is a predatory system that functions in darkness – through ‘gag’ orders like the one in my case, through a publicly-inaccessible docket, through a closed courtroom and through ex parte ‘temporary’ orders that are in place for years.”

Burke and other attorneys agree with Catherine’s assessment and are sick over her death. They’re taking up the fight for court reform on behalf of her and other mothers, they said, because what’s happening violates federal civil rights law: Courts routinely deny women’s constitutional right to due process—a right the U.S. Supreme Court has stated includes “an opportunity to be heard”—and some have lost their children because of it.

Burke also championed the case of Sylvia Lee, a New York attorney who lost custody of her children in 2012 after her husband claimed to “fear for their safety”—a situation strikingly similar to Catherine’s. On appeal, Burke claimed, “Except for uncontested cases or those involving stipulated facts, New York law does not authorize any court to make final child custody determinations in the absence of a full evidentiary hearing.” 

He argued Lee’s 14th Amendment right to due process was violated since the court claimed it had “adequate, relevant information” in lieu of admitted evidence—using a scheme Burke wrote “can only be described as a trial by affidavit,” which consisted of attorneys’ inadmissible statements and hearsay from affidavits and expert reports “untested for competency.”

New York’s Second Appellate Division upheld Lee’s original 2013 trial court ruling, but Burke and Lee kept going. And, in 2016, the New York Court of Appeals reversed the decision—a monumental win for them.

“Sylvia knew it was too late for her situation but wanted to try to make sure what happened to her didn’t happen to anyone else,” Burke said. Lee died in 2021 from a congenital brain condition. 

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Sylvia Lee lost custody of her children in 2012 after her husband claimed to “fear for their safety.” In 2016, the New York Court of Appeals reversed the decision. Sadly, Lee died in 2021 from a congenital brain condition. (Courtesy)

Burke admitted he was naive to think the ruling would protect future New York women (and men) in similar situations—because it’s been largely ignored.

The S.L. v. J.R. decision blasted New York’s supreme court (which handles family court cases and heard Kassenoff’s as well), saying the appellate division’s support of the custody ruling “was an error” and the trial court relied on “hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party.”

The best interest of the child determinations should only be made after a full and fair hearing, the Court of Appeals stated: “Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a custody proceeding is sizeable.” 

The other side will say mom is crazy and mom is going to flee the country, while mom isn’t there to defend herself, so she loses custody. … She must wait three, six, nine months—or even longer—to be heard. It is definitely abuse.

Paul Griffin, legal director of Child Justice, Inc.

“It’s a system that operates in darkness,” said family law attorney Timothy Tippins, who teaches at Albany Law School and sits on Governor Kathy Hochul’s 2021 Blue Ribbon Commission on Forensic Custody Evaluations. “Any ex parte relief granted is supposed to be reserved for an emergency because ex parte is a denial of due process. The court is supposed to expeditiously conduct an evidentiary hearing, and allegations should be tested with cross-examination. Unfortunately, what happens is the temporary becomes permanent by inertia. There can be a hearing two years later, and there’s a whole new status quo. So the temporary arrangement has the persuasive ‘stability for the child’—and is hard to reverse.”

Sources told Ms. off the record that this “denial of due process” was bad before the pandemic, but has gotten even worse during and after, as courts’ backed up calendars mean they tend to decide cases more quickly.

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

“By the time the case goes to trial, it’s largely decided because the forensic report is viewed by the judge before testimony begins,” said Ronald Bavero, a retired Westchester County, N.Y., matrimonial attorney who worked in this same court system for nearly 40 years and wrote a book about it. “It’s not just validation that the forensic interviewed the parties, children and significant contacts—it’s the product of the maid, teacher and disgruntled lady down the street. All of this information, classic hearsay, now makes its way into the report. It’s not tested by cross examination and no one swears it’s true.”

Many women, and family court reform advocates, call this an abuser’s modus operandi: They obtain an emergency protection order and often custody of children—then that “temporary” order becomes permanent. The forensic evaluator’s report later validates the status quo. High-conflict litigants often say their spouse is turning their children against them, citing “parental alienation syndrome,” a theory recently discredited by the United Nations. Catherine Kassenoff spent years, and nearly $1 million, trying to counter the narrative that she was dangerous and unhinged so she could see her three girls. 

In her final letter, Kassenoff took aim at the family court system’s allowance of “ex parte” applications and Temporary Orders of Protection (TOPs).

Because ex parte motions are “emergency” in nature, they are often heard without the other party present or even notified:

“In July 2020, Dimopoulos [Allan Kassenoff’s attorney] asked for – and got from Judge Koba – an ex parte temporary order of protection (“TOP”) in favor of the children (who had been put in their abusive father’s custody based on the forensic report of Abrams). He alleged that I had to be subjected to a TOP because I posted on Facebook a photo of living out of my car, after being removed from my home by virtue of the ex parte eviction order he had obtained in March 2020. He didn’t stop there. For the next several years, he obtained TOP after TOP on an ex parte basis. All of them were vacated and none was ever converted to a permanent order of protection…The most egregious example of misuse of TOPs against me was when Allan and Dimopoulos obtained a “one mile stay away” order, on an ex parte basis, in September 2021 requiring me to vacate my own apartment in Larchmont and live in the basements and on the couches of friends – without so much as a hearing.”

This is not just a New York problem. Advocates like Paul Griffin, legal director of Child Justice, Inc. in Maryland, said he gets complaints about similar due process violations across America.

“The other side will say mom is crazy and mom is going to flee the country, while mom isn’t there to defend herself, so she loses custody,” Griffin said. “They don’t set a date for a hearing and mom is stuck with the status quo. Her attorney files but she must wait three, six, nine months—or even longer—to be heard. It is definitely abuse.” 

Griffin was a litigator for 20 years before taking his position to help protective parents in custody cases full-time eight years ago.

“When I first heard about this ex parte problem, I thought, ‘No court does that,’ but I was wrong. Usually, the kid had better be close to bleeding and in emergency danger to deny a mother due process rights but courts abuse that.”

Has it always been this way, or is it getting more egregious? 

“I’m at nearly 50 years of doing this … and the situation in our court system has never been worse,” Tippins said. “In a large sense culturally and politically I think we’re living in a post-constitutional era. They treat the constitution like a goddamn suggestion. It’s a mandate. It’s the only thing that separates us from being a banana republic.”

The American Civil Liberties Union has decided to take up this cause. A landmark June 2021 court decision (Crawford v. Ally) held that New York must provide an evidentiary hearing to anyone charged with a crime before they face an order of protection that may remove them from their home or separate them from their families. However, the New York Civil Liberties Union (NYCLU) said it learned the Office of Court Administration (OCA) marked a memorandum “Confidential: Internal Use Only,” instructing judges that “courts should resist—unless absolutely necessary and appropriate—anything approaching a full testimonial hearing.” The memo goes so far as to say that the ruling does not mean witnesses and non-hearsay testimony are necessary. 

The NYCLU filed a FOIL (Freedom of Information Law) request for 10 years of OCA documents addressing claims for evidentiary hearings. Initially, the OCA planned to comply, but it has now missed the six-month deadline and instead appealed the decision.

“It is critical that the influences behind this decision-making, which has enormous consequences for those at the mercy of the courts, are transparent to the public,” said Daniel Lambright, NYCLU senior staff attorney.

As for Burke and other attorneys who are outraged by Catherine’s case?

“Efforts are underway to pursue appropriate recourse through the state and federal courts,” said Burke. He called for the Department 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 persons in the United States, particularly some of the most vulnerable members of our society.”

Yes, some of those “vulnerable members” are women—but they are also the children who are traumatized by losing contact with a loving parent and, in some cases, forced to live with their abuser

Editor’s note: We have repeatedly reached out to Allan Kassenoff and his attorney Gus Dimopoulos to request an interview as part of our continuing coverage of this case but, to date, we have not heard back from them. 

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About

Amy Polacko is a divorce coach and journalist who also runs a support group for single/divorced women. She worked on the Pulitzer Prize-winning team covering the TWA Flight 800 crash for Newsday. As a survivor of domestic abuse, she coaches women trying to escape and is writing a book on the family court underworld. Learn more about Polacko and her mission at www.freedomwarrior.info.