The Court Report
By Richard Blassberg

What Injustice One Judge Signs Off On Let No Other Set Aside
Suzanne Stephans v. Marc Warnock
Westchester County Family Court, White Plains
Family Court Judge Charles Devlin Presiding

Last Thursday morning, October 25, Suzanne Stephans, of Irvington, appeared in the Family Court of Judge Charles Devlin. She last appeared before Judge Devlin on September 17th, little more than a month earlier. Ms. Stephans, the mother of three children - a daughter nearly 12 years, and two younger sons, all attending Irvington Public Schools - was attempting to modify two conditions of visitation, and seeking to remove and replace her children’s Law Guardian, Therese Malach.

With regard to the conditions of visitation, it is important to note that until April of this year, Ms. Stephans, the children’s natural mother, had had residential custody. That custody was transferred to the father in April by Supreme Court Justice William Giacomo, one of four Supreme Court, Matrimonial Part, judges transferred nearly a year earlier, out of Westchester, by Administrative Judge Frances Nicolai, in an “Historic Rotation” called for by Chief Judge Judith Kaye, in response to a deluge of complaints by Westchester litigants.

Giacomo, dealing with the custody issue, brought on five years after their divorce, by Stephans’ former spouse, Marc Warnock, also of Irvington, had commented, after meeting with the children, as to how well-mannered and obviously well-raised they were under the care of Ms. Stephans, but seemed to have no compunction about taking custody from that same mother, under the pressure and influence of Marc Warnock’s attorney, Clifford Kleinbaum, and appointed Law Guardian Therese Malach.

At the September appearance before Devlin, the judge, in response to statements from Kleinbaum opposing Devlin’s involvement in motions brought by Stephans, had said, “You know that I understand that the judges in Supreme Court are far more knowledgeable than us judges here in Family Court, but Ms. Stephans has every right to be in Family Court.” That statement had given hope, perhaps false hope, to Ms. Stephans and her attorney, Sandra Mattessich, of Legal Services Of The Hudson Valley, that perhaps some avenue of at least partial relief from Judge Giacomo’s counter-intuitive, very destructive, but conspiracy-compliant decision might be modified, if not reversed.

Specifically, Stephans was seeking to remove Therese Malach, who was originally appointed by Supreme Court Justice Donovan. Stephans alleges that Malach has already been paid more than $43,500 by Warnock and has conducted a onesided involvement with, and for, that parent, that has brought about complaints by the children to their therapist and to Ms. Stephans, following Malach’s unorthodox social engagements with them and with their father.

Additionally, Stephans was seeking to reinstate a five-day vacation with the children as well as an adjustment to her alternate-weekend visitations that would permit her to bring the children to school on Monday mornings following such visitations rather than having to bring them to their father at 7pm on Sunday night.

Following a 40-minute “attorneys only” conference in chambers, Devlin addressed the parties in open court with, “Ms. Mattessich has filed an amended petition with respect to an order of Supreme Court by Judge Giacomo.

That decision of Judge Giacomo was a post-judgment in a divorce proceeding. That is what we discussed in the attorneys-only conference. There is an 80-page decision by Judge Giacomo. I must say I was impressed.”

He went on, “There was an access schedule, a very detailed one.” Devlin then alluded to the fact that the 80-page decision by Giacomo, actually drawn up by Giacomo’s law clerk, Barry Swersky, a tight associate of Therese Malach, provided no specificity with regard to an alleged personality disorder of Ms. Stephans.

Devlin declared, “I have not found a finding by Judge Giacomo as to what the personality disorder is, and that puts me in a very funny position. One way or another, this case must go back to Judge Giacomo. I should grant a stay of these proceedings and they should be removed by Judge Giacomo.”

Attorney Mattessich then spoke up, “Obviously, I am not consenting to that. Based upon complaints and grievances by my client, it is not possible for me to proceed.”

Attorney Kleinbaum then offered, “I believe that this matter should go back to Judge Giacomo. I believe there is forum-shopping here. She uses the children.”

Then Therese Malach weighed in, “I have already met with my clients. I have a very real relationship with them.”
Then, moments later, responding to a comment by Attorney Mattessich regarding complaints against Malach by the children, Malach contradicted herself, saying, “I haven’t seen those children since May or June. So I believe there has been some prompting by the mother.”

Returning to the issue of an alleged personality disorder, the judge then said, “Mother’s access is conditioned upon dealing with her personality disorder.” Then, looking directly at Ms. Stephans, he said, “If I were the litigant, I would be saying ‘So what is it; what am I supposed to be doing?’ “

Then, turning 180 degrees, Devlin declared, “I rarely remove law guardians, but, I have. In those cases I have appointed a guardian ad litem, and in those cases, I have interviewed the children in the guardian’s presence.”

Analysis:

It was obvious that Judge Devlin was all too keenly aware that this mother was up against a well-practiced team of high-priced ‘matrimonial parasites’. However, despite his empathy and compassion for the plight of this mother, and more importantly her three young children, he felt powerless, in the final analysis, unwilling to step into the situation in a meaningful way, even to make relatively minor adjustments to visitation procedures, given the freshness (April 2007) of Judge Giacomo’s ‘ruling’.

If Warnock has paid her $43,500 as reported, then, from his standpoint, Therese Malach, so-called Law Guardian whose activity, both in and out of Court, suggests she is far more concerned about his needs and objectives than she is about the welfare and well-being of her “clients”, the children, has been well worth it.