Freda Wolfson (Carmen Natale)
A group of fathers is moving ahead with its suit claiming they get short shrift in child custody proceedings before New Jersey’s family court judges.
The group filed an amended complaint in the U.S. District Court for the District of New Jersey in Trenton on Jan. 22, naming five Family Part judges as defendants. The latest filing follows a Jan. 16 ruling from U.S. District Judge Freda Wolfson that granted the defendants’ motion to dismiss but dispatched some of the counts without prejudice.
The amended complaint brings due process and equal protection claims against Judges Lawrence DeBello and Anthony Massi, both of Mercer County; John Call Jr. of Burlington County; Nancy Sivilli of Essex County; and Maureen Sogluizzo of Hudson County in their official and individual capacities. The judges signed orders in the cases of the six plaintiff fathers. The complaint is brought on behalf of persons who were deprived of child custody by the defendants in violation of their constitutional rights.
The six fathers who are named plaintiffs claim that basing custody decisions on the best interests of the child violates the plaintiffs’ constitutional rights. Parents who are at risk of losing a custody or visitation battle should be granted the same due process rights granted to those whose parental rights are subject to termination due to abuse or neglect, they claim.
The plaintiffs seek declaratory and injunctive relief for deprivation of fundamental rights under color of law, including an order requiring any parent whose right to care, custody or control of their child was reduced by state action to be granted a plenary hearing within 10 days of that action.
The fathers claim they lost custody of their children after being given short notice of orders to show cause accusing them of domestic violence or being incompetent parents. Many of the plaintiffs claim they had no chance to retain counsel before losing custody and visitation, and are required to demonstrate a change in circumstances before they can regain custody.
Among the plaintiffs is Surender Malhan, who cites the proceedings in which he lost custody of his two children after their mother filed an order to show cause requesting full custody. Sogluizzo gave Malhan less than two hours’ notice of the proceeding and did not allow him to present evidence to refute the mother’s claims that he was an unfit parent, the suit says.
Malhan was interviewed on WWOR-TV about the present suit, prompting Sivilli to issue an order barring him from discussing the case with the media. Malhan claims his First Amendment rights were violated by the order.
The plaintiffs’ lawyer, Jersey City, N.J., solo practitioner Paul Clark, also has filed a separate suit against Sivilli over the gag order on behalf of a local blogger, Paul Nichols.
Clark notes that all the plaintiffs in the class action are male, but he says it’s unclear whether the system is biased against fathers.
“We’re certainly hoping to get the federal court to review the situation in the New Jersey Family Court. In our view, the Appellate Division has let the lower court do whatever it wants,” Clark said.
The plaintiffs’ claims against the state of New Jersey, Superior Court Clerk Michelle Smith and several presiding Chancery Division judges were dismissed by Wolfson on Jan. 16.
Wolfson rejected the state’s motion to dismiss the case as an attempt to appeal state court proceedings. She cited a 2013 U.S. Court of Appeals for Third Circuit ruling in a similar case, B.S. v. Somerset County, in which the appeals court ruled that such grounds did not apply to the case of a mother who claimed she lost custody of her daughter due to a violation of her due process rights by a Pennsylvania state court judge. Wolfson also rejected the state’s sovereign immunity defense, finding that the plaintiffs’ claims against the individual defendants for injunctive relief involving their custody hearings are not actions against the state and are not barred by sovereign immunity.
Judiciary spokeswoman Tammy Kendig declined to comment on the amended complaint.