The Court Report
By Richard Blassberg

Incredible Struggle to Reunite Mother and Child Continues

(Ed. Note: Last Wednesday, Robert Wayburn, attorney for the parents of Jing Kelly, grandparents of Tristram Kelly, Ling Mei Xing and Hua Xing, contacted The Westchester Guardian to inform us that his clients, and Jing, would be appearing in Family Court once again before Judge Sara P. Schechter the following day, and to update ongoing developments in the continuing battle to reunite Jing and Tristram.

The comments of Mr. Wayburn, who readers will recall has been involved with the case from the very beginning, are reproduced here in the form in which they were conveyed.)

“It is expected that Jing’s mother, Ling Mei Xing, will testify on behalf of her Visitation Petition and that the Legal Aid Society social worker, Ms. Lauter, will testify regarding her visit to California to see Tristram one year ago. That will, hopefully, conclude the Dispositional Hearing. ACS may have a report from California as Douglas
and Corrine Kelly have been bringing Tristram to a therapist there on their own. Jing has not seen her son Tristram since January 3, 2003.

Fourteen months have elapsed since the Appellate Division First Department reversed the March 20, 2003 aware of custody of Tristram to Gail Hiler and directed Judge Schechter to hold an immediate visitation inquiry and an expedited Dispositional Hearing.

Instead of complying with that ruling, Judge Schechter, to this very day, has forbidden this mother to contact her son in California and has forbidden visitation both to her and to the maternal grandparents. The premise on which this judge has made these unconscionable rulings is that Tristram may be emotionally disrupted by learning that his true birth mother and only surviving grandparents, all of whom live in New York City, want to reestablish contact with him and eventually gain his return.

RATHER THAN DO JUSTICE BY THIS MOTHER AND CHILD, JUDGE SCHECHTER ERRONEOUSLY PERMITTED THE PATERNAL UNCLE (unauthorized caretaker of Tristram since July of 2003) TO INTERVENE IN THE NEGLECT DISPOSITIONAL HEARING AND TO CALL WITNESSES IN HIS OWN RIGHT AND TO INTRODUCE DOCUMENTARY EVIDENCE. This ruling was also reversed on appeal by the Appellate Division First Department.

Perhaps the day will come that Judge Schechter heeds the admonition of the Appellate Division First Department in a MANDAMUS ruling in early August of 2006, DIRECTING HER ATTENTION TO THE PRIOR VISITATION RULING IN THE INITIAL APPEAL DECISION OF NOVEMBER 2005.

ONE WOULD THINK THAT A FAMILY COURT JUDGE WOULD INDEED FOLLOW THE LAW, ESPECIALLY WHEN REMINDED AND REDIRECTED BY AN APPELLATE COURT TO DO SO.

BUT THERE IS LITTLE HOPE THAT THIS WILL BE DONE. TOMORROW WILL NO DOUBT BE ANOTHER TRAGIC DAY IN THE LIFE OF THIS MOTHER AND CHILD AND THIS FAMILY COURT JUDGE WILL, NO DOUBT, AGAIN SCHEME TO IMPROPERLY DENY THIS MOTHER AND CHILD THEIR CONSTITUTIONAL RIGHT TO ASSOCIATION AS A FAMILY.

I have been asked by several media sources to comment on the January 23, 2007 decision of the Supreme Court of Tennessee in a case entitled IN RE ADOPTION OF A.M.H.

MY COMMENT IS THAT JING KELLY’S CASE IS EQUALLY AS TRAGIC AND UNJUST. The parents in that case WHO ALSO ARE CHINESE fought for many years to regain custody of their daughter and finally have prevailed. It is gratifying to see that the highest court in the State of Tennessee has put matters
aright for this family and my heart goes out to Shao-Qiang and Qin Luo He that their valiant struggle to regain contact with their daughter, Anna Mae He, now 7, is successfully concluded.

That case involved an improper determination that the parents had “abandoned” their daughter by failing to visit her for a period exceeding four months (the “4 month rule”) and that, accordingly, Anna Mae He could be adopted against their wishes and would not be returned to their care.

It seems that the trial court was prejudiced and biased in that the Chinese parents intended to return to China with their child and it also seems that the trial court favored the caretakers of the child as they were American and better off financially. THIS SAME BIAS HAS BEEN ILLUSTRATED IN THE JING KELLY CASE THROUGHOUT THE LITIGATION HISTORY.”

(Ed. Note: It should be noted that there has never been an issue of abandonment in the Jing and Tristram Kelly case. In point of fact, prior to removing Tristram from the United States to protect him from his violent and abusive father, Jing and Tristram’s separation was brought about by New York County ACS unlawfully.

And, following their return after 18 months in China, upon the death of Craig Kelly, they were separated a second time by the actions of District Attorney Jeanine Pirro, who arranged for the child to be kidnapped from Vancouver, Canada by his maternal aunt, Gail Hiler, more than four years ago.)

“JING AND TRISTRAM SHOULD NOT HAVE TO WAIT EIGHT YEARS FOR VINDICATION OF THEIR CONSTITUTIONAL RIGHTS TO BE A FAMILY, TOGETHER, AS MOTHER AND SON. THIS CASE IN TENNESSEE HAS GIVEN JING KELLY RENEWED HOPE THAT ULTIMATELY SHE WILL PREVAIL IN HER LEGAL BATTLE (but alas, I feel it will be left to appellate courts to again undo the harmful and unlawful and improper rulings of a rogue family court trial judge).

PERHAPS THESE TWO CASES WILL GENERATE SUFFICIENT PUBLIC INTEREST IN WHAT GOES ON IN FAMILY COURT TO OBTAIN NECESSARY MODIFICATION AND REFORM SO THAT FAMILY COURT TRIAL JUDGES NO LONGER FEEL FREE TO BASE IMPORTANT FAMILY/CHILD DETERMINATIONS ON HOW THEY FEEL ABOUT THE PARTIES BUT INSTEAD
ARE AT LONG LAST REQUIRED TO OBSERVE AND APPLY THE LAW AS IT IS WRITTEN. WE ARE SEEING FAR TOO MANY EXAMPLES OF TRAGIC, NEEDLESS SEPARATION OF CHILDREN AND PARENTS ON THE PART OF THE FAMILY COURT. APPELLATE REMEDIES WHEN GRANTED DO NOT RESTORE THE LOST TIME, THE LOST CHILDHOOD, THE LOST PARENTHOOD.”