The Court Report
By Richard Blassberg

A Seemingly Unending American Tragedy

Last week The Westchester Guardian, in a Court Report entitled Appellate Division, State Supreme Court Finds Family Court Judge Sara P. Schechter, “Erred in Permitting Intervention by the Child’s Paternal Relatives”, took the position that the court “did not go nearly far enough.” For those readers who have been following the sad and outrageous judicial torture which has kept a loving mother and her six-year-old son apart for the last four years, our position was no doubt self-explanatory. However, for those who only recently have become acquainted with the ongoing injustice, the following comments by Attorney Robert F. Wayburn presented, in part, represent a very comprehensive and organized accounting of events.

In presenting Attorney Wayburn’s comments, and having a long acquaintance with the case, The Westchester Guardian welcomes, better yet, invites, any factual countervaling information from Gail Hiler, Douglas Kelly, Jeanine Pirro or any other party to this American tragedy.

Robert F. Wayburn’s comments:

The saga of Jing Kelly, following her arrest at the Vancouver airport on January 3, 2003, bears retelling. For it manifests a pattern of injustice so complete and protracted and involving not just this judge (New York County Family Court Judge Sara P. Schechter) but the Westchester County District Attorney and law enforcement officials and the misguided and vindictive paternal aunt, Gail Hiler, resident of Westchester County, but the crime of “Matricide” itself, a crime that continues to this very day.

The Prior Appeal Ruling:

On November 17, 2005, the Appellate Division unanimously reversed the unlawful and improper permanent custody award this rogue family court judge (Hon. Sara P. Schechter, JFC) previously made in favor of the paternal aunt, Gail Hiler, a Larchmont resident. Judge Schechter made that ruling on March 20, 2003, at a time when Jing Kelly was still incarcerated while awaiting trial in Westchester County for alleged custodial interference.

Jing was not produced in family court that day, a clear denial of her Constitutional rights, and she erroneously denied Jing visitation with her son, Tristram despite the fact that the Valhalla jail facility had special arrangements where such visitation could occur under the supervision of a staff social worker.

Judge Schechter gave as her reason for denying visitation between this mother and child, at that time, that she was concerned for security. This shallow reasoning was rejected by the appellate court which not only restated the governing law concerning visitation (to wit it must be ordered unless there is a clear showing that it would be
detrimental to the child) but also noted that any security concerns held by the family court trial judge could be adequately dealt with by having the visitation supervised.

At the time the appeal was argued in the fall of 2005, it was not known where Tristram was then living. Gail Hiler disclosed only that Tristram was no longer with her but refused to provide any other details. It turns out, as revealed in her recent family court testimony, that she sent Tristram out of her home, permanently, just four months after she was erroneously awarded full custody of this child. She testified that Tristram has been living in California with her brother, Douglas Kelly, since late July of 2003.

The appellate court was concerned to rectify this unjust situation for both mother and child. In its November 2005 ruling it directed the family court trial judge to hold an “immediate” inquiry as to resumption of visitation and to also hold a new dispostional hearing “on an expedited basis.” Had the appellate court been told of Tristram’s whereabouts, that he was not living with Gail Hiler since July of 2003, the judges would, no doubt, have taken stronger action to bring this matter to proper resolution.

The Current Situation in New York County Family Court

What transpired in family court after the remand of the case following the above appeal ruling was nothing short of a further debauchery of justice. The first thing Judge Schechter did on the remand (December 29, 2005) was to erroneously allow the paternal uncle in California with whom Tristram had been living the past three years without lawful authority for his being there was to intervene in Jing Kelly’s new dispositional hearing over her objection.

As a result, the visitation inquiry was delayed and the dispositional hearing was delayed, while the paternal uncle was permitted to put in his direct case first and call his witnesses first and put in his evidence first. The paternal uncle requested that Tristram be evaluated by a psychologist in California and the family court judge agreed. But Judge Schechter said this was not to be an evaluation for visitation purposes but, rather, it was to be a full forensic evaluation which could be used for assessing permanent custody, an odd concern since no custody petition was then pending before the family court at that time and Article Ten dispositional orders of placement, if such order were to be made, generally run only for one year before lapsing or being further reviewed. The appointment of this forensic psychologist to evaluate Tristram in California was not made until
late June of 2006, some seven months later.

To be fair, part of the delay in this appointment seems to have been caused by the fact that Jing changed lawyers in May 2006. However, even so, the family court judge should have been more attentive to expediting the visitation inquiry. The appellate division agreed and issued a Mandamus against Judge Schechter on August 3, 2006, redirecting Her Honor’s attention to the visitation ruling in the first appeal ruling of November 17, 2005.

Judge Schechter nonetheless has denied visitation, to date, both as to mother and child, and as between maternal grandparents and child, until the entire hearing is completed. Judge Schechter has denied applications that Tristram be brought here for visitation with his paternal aunt, Gail Hiler, so he can first meet his mother and maternal grandparents here in New York City where they live.

Jing was fully evaluated by the family court’s mental health unit and a written report was submitted on February 27, 2006 in that regard. Dr. Dawn Hughes, who evaluated Jing Kelly in December 2003 and testified at her criminal trial in January 2004, reevaluated her and issued a written report in March 2006. That report is now
in evidence and Dr. Hughes has testified on the last two court dates in this regard.

It is indisputable, based on the recent mental health evaluations, that Jing Kelly does not suffer from any mental condition or impediment that would interfere with or limit her capacity to care for her son, Tristram. The concern is more focused on Tristram as he has only recently been told that his current caretakers are not his real parents and that his mother lives in New York City and wants to have contact with him.

The psychologist appointed by Judge Schechter in California has now seen Tristram and based on incomplete information has provided a report to the family court. The report is tainted by the fact that the information provided to the examiner was based on her contacts being limited to Douglas and Corrine Kelly and their lawyer in New York.

Jing has made a motion to have a child therapist appointed for Tristram in California so that visitation can finally ensue. It is a good question as to how long visitation will continue to be delayed here by the family court judge. Right now, Jing can have no contact whatsoever. She cannot make a telephone call. She cannot send a card or letter or gift. She cannot hear her son’s voice. This is absurd.

I would ask everyone to say a little prayer that the process of re-establishing contact between this mother and her son will soon begin in earnest. Further hearings are scheduled in family court in late November and early December of this year. Maybe, just maybe, this mother will have some contact with her son for Christmas.

Was Gail Hiler Truly Concerned For Tristram’s Best Interest?

Consider Tristram’s condition at the moment this family court judge wrongly awarded custody to the paternal aunt and wrongly denied this child visitation with his mother on March 20, 2003. Tristram was then nearly three years of age but had been in his mother’s sole care for the eighteen-month period of June 20, 2001 to January 3, 2003. During this eighteen-month period he had been living in China with his mother and hearing primarily Mandarin being spoken. Obviously, Tristram’s mother, Jing Kelly, was the central figure in his life at this juncture.

The day after Jing was apprehended in Vancouver Airport in British Columbia, Canada, on Friday, January 3, 2003, Gail Hiler flew there (on Saturday) and was armed with a packet of papers she claims were given her by the Town of Mamaroneck Police and staff attorneys at the Westchester County District Attorney’s office. Gail Hiler testified recently in family court that she was told by the police and an assistant district attorney that she should be careful not to clear customs, not to enter the airport, but to go straight to the police and hand them the packet.

Gail Hiler testified that she was met by the police and escorted to a room under their control. Tristram was brought there and handed over to her there. Gail Hiler testified that the social worker who brought Tristram there was reluctant to turn over Tristram to her and complained that the papers she was being shown were not originals and did not have court certifications and that there was no current order of Canada or New York directing that she turn over the child in this manner. Gail Hiler recently testified that the police said to the social worker: “You are not turning over the child to her, we are.” Gail did not have a passport. She entered and departed Canada without clearing customs. This was a sweetheart deal. One can legitimately wonder if the packet she carried that Saturday contained money. The situation is so unusual and unorthodox to an extreme as to defy any other rational explanation.

This was a police to police, law enforcement to law enforcement reciprocal arrangement that, conveniently
for Gail Hiler, bypassed normal court routes and allowed her to travel internationally with a child, not her own, in complete derogation of applicable law. The Town of Mamaroneck Police and Westchester District Attorney Pirro had no business getting involved in this non-criminal aspect. The transfer of Tristram was none of their concern but would have been more properly left to the courts of both countries. But for their wrongful action in assisting Gail Hiler retrieve Tristram in this manner, the saga of Jing Kelly’s protracted separation from her
son, Tristram, would never have begun.

Gail Hiler testified she waited for several hours at the airport with Tristram in her harms, exhausted and
sleeping. Her plane was delayed and she did not arrive in New York until 2:00 A.M. on Sunday morning. That
very day and the next day and the following several days, numerous neighbors and television and newspaper
reporters were gathered at her home. Gail Hiler said there were at least twenty people there at all times. Gail
Hiler said that Tristram was quiet, subdued, clinging to the coat he had been wearing when with his mother, sitting
under the table and not speaking a word.

Was this the reason Gail Hiler initially resisted the request from social workers at the Westchester County Department of Social Services that they have access to Tristram to see how he is doing? Gail Hiler testified that Tristram had “night tremors” and could not sleep in his upstairs room. Is this why she got rid of this child and shipped him out to California to live with her brother? Gail Hiler testified she took Tristram to see a child psychiatrist because of his problems in her home. She testified that she took him for a speech evaluation too.

Supposedly this reflects badly on Jing Kelly, in the eyes of Gail Hiler, even though Ms. Hiler’s own son needed speech therapy for many years. Why did Gail Hiler rush up there that Saturday to claim this child in this precipitous manner? Was it because she knew, as did the then-Westchester District Attorney, Jeanine Pirro, and the Town of Mamaroneck Police, that Jing Kelly, mother of Tristram and sole surviving parent of the child, was scheduled to appear before the Canadian court that following Monday, and that Judge Schechter would be returning from vacation also that following Monday?

Obviously, Gail Hiler did not desire to await the outcome of the judicial review to which both child and
mother were Constitutionally and statutorily entitled. Gail Hiler did not want the law guardian duly appointed
for the child to be aware of or involved in this rapid transfer plan. Gail Hiler did not want Administration
For Children’s Services (ACS), the petitioning child protective agency in New York City, to contact their
Canadian counterparts and be involved in the decision-making as to what was best to do with the child.
Gail Hiler did not want Judge Schechter to be involved either. She filed for custody of Tristram in
Westchester County in mid-January of 2003 and was thereupon awarded temporary custody of Tristram by
a court that had no prior involvement with the case. Ms. Hiler was forum shopping and in this effort, too, she was aided and abetted by the local police and District
Attorney Pirro.

Consider poor little Tristram, who still recognized his mother’s picture in the newspapers at the time of her criminal trial as confirmed by family court testimony of Douglas Kelly. Here he is abruptly ripped from his mother’s care and then, after living with Gail Hiler for several months, is shipped out of her home to California to live with his paternal uncle. And this, too, is done secretly by Gail Hiler without any information being provided to the family court or the law guardian, or the mother herself.

Another disruption for Tristram, another adjustment, accomplished by guess who, Gail Hiler, his misguided
and overly involved paternal aunt. Ms. Hiler did not see fit to disclose the fact that Tristram was no longer living in her home when Jing Kelly was released from incarceration and filed for custody of her son in New York
County Supreme Court. This nondisclosure is both astonishing and inexcusable on her part and on the part of her husband, James F. X. Hiler, Esq., who represented her in that proceeding. Both of them are lawyers and both of them knew they were duty-bound to provide this pertinent information at the time. Had they done so, the New York County Supreme Court would have held an immediate hearing and determined back then in early 2004 what should be done with Tristram.

Douglas Kelly testified recently in family court that he decided not to tell Tristram about his real father and mother, and that no pictures of Jing were kept visible in their home. Douglas Kelly testified that neither he,
nor his wife, Corrine, nor his sister, Gail Hiler, consulted any psychologist or counselor as to how best to
deal with the fact that Tristram was now moving into their home and would not be told of his true parentage.

They collectively exercised improper supervision and guardianship of Tristram by this unilateral and misguided
determination to keep him in the dark about his mother and maternal grandparents. What hubris is this? None of them are Tristram’s parents. None of them have custody over Tristram.

None of them have standing to make such profound determinations. The fact that they did this is ample
reason for removing Tristram from their care immediately. And this would probably have been done
already were Jing Kelly’s case being heard and determined anywhere but in New York County Family
Court before the very judge who long ago decided this child would never be returned to his Chinese
mother nor to her parents.

Conclusion

Everyone is now so concerned that Tristram be with a therapist to reunite with his mother and that this be dragged out forever more, but no one ever was concerned in this regard when Gail Hiler whisked herself
to Canada to snatch Tristram before any court could review the matter and no one was concerned for this when
Gail Hiler shipped him off to California. And no one was concerned when Douglas Kelly decided to conceal
Tristram’s true parentage from him for the following three years. So, in my heart of hearts, isn’t it simpler to
return Tristram to New York now and give him all the therapy he needs to adjust to his mother here?

Where are you Gail Hiler now? Why don’t you pick up the phone and have Tristram returned to your home in Larchmont so he is available to the family court who initially entrusted you with his care and so he is available to see his mother and grandparents and eventually live with them as he should have been doing all along. After being personally responsible for so much trauma and disruption to this child, can’t you have the heart to do the right thing for once? That would make for a great Christmas.