A group of fathers who are suing family court judges in federal court want to make it clear that their case is not a misguided attempt by disgruntled litigants to overturn their child custody rulings. Rather, they see it as an effort to end what they say is New Jersey family courts’ systemic denial of due process rights to parents in custody disputes.
But some observers are not optimistic about the plaintiffs’ chances of success.
In Edelglass v. DeBello, first filed in February 2014 and amended on Jan. 23, a half-dozen plaintiffs say they lost rights to custody or visitation of their children after judges gave them short notice of their hearing, or no hearing or an ex parte hearing. The suit claims such violations of due process rights in family courts are routine and amount to a violation of federal civil rights law.
Some of the plaintiffs claim their due process rights were violated after their children’s mothers accused them of domestic violence or child abuse. The fathers seek no damages but are asking for injunctive and declaratory relief against the five judges named in their suit—Lawrence DeBello and Anthony Massi of Mercer County, N.J., John Call Jr. of Burlington County, N.J., Nancy Sivilli of Essex County, N.J., and Maureen Sogluizzo of Hudson County, N.J.
Among the plaintiffs is Samir Joshi, who claims he had only a few days’ notice of a July 12, 2012, hearing in which Call gave custody of his children to their mother. Joshi sought a continuance because he was in the midst of funeral preparations for his recently deceased father, but the hearing went on, according to the suit. Joshi, appearing telephonically, was not allowed to cross-examine his children’s mother and didn’t have enough time to prepare for the hearing or to retain counsel, the suit says.
“We’re saying there is a widespread policy and practice of the family courts of New Jersey to deprive parents of the care, custody and control of their children without any hearing whatsoever and sometimes without the parent even being present,” said Paul Clark, the Jersey City, N.J., lawyer representing the plaintiffs.
An earlier version of the suit named as defendants the state of New Jersey, Superior Court Clerk Michelle Smith and the presiding judges of the family courts where the plaintiffs’ alleged due process violations took place. On Jan. 16, U.S. District Judge Freda Wolfson of the District of New Jersey dismissed most of the complaint but allowed the plaintiffs to re-file. Wolfson dismissed the complaints against the presiding family judges because they were premised on respondeat superior and therefore failed to state a claim under Section 1983. The amended complaint names as defendants the judges who handled the plaintiffs’ cases.
Clark said that taking such due process violations to the Appellate Division is futile because its judges give wide latitude to family court decisions. He also cited cases such as Sacharow v. Sacharow, in which the New Jersey Supreme Court held in 2003 that a parent has no fundamental right to the custody of children when another parent is given custody because neither a third party nor the state seeks to intrude on family autonomy. Such rulings serve as the basis for denying due process in custody proceedings, he said.
Clark said he believes Sacharow was overruled by the U.S. Court of Appeals for the Third Circuit in its January 2013 decision in B.S. v. Somerset County, which held that a Pennsylvania county is not immune under Section 1983 for due process violations in a case where child welfare workers removed children from their home due to suspected neglect without holding a post-removal hearing. Clark analogized the removal of children in that context to the termination of one parent’s rights in a child custody case.
“What the Third Circuit has said is when the state terminates parental rights, there must be a plenary hearing. That’s what the state is not doing,” Clark said.
Bethany, Conn., lawyer Norman Pattis shared Clark’s belief that federal courts should offer a remedy for plaintiffs seeking injunctive relief from due process violations by state court judges. Pattis brought a similar suit, Sargent v. Emons, on behalf of a client who filed a civil rights suit in a Connecticut federal court claiming his due process rights were violated by a state court judge in a child custody case. But his suit against Judge Jane Emons was dismissed by a federal judge in Connecticut based on judicial immunity and the U.S. Court of Appeals for the Second Circuit affirmed the dismissal in November 2014.
“There is a well-founded and widespread perception that the family courts in this country are out of control. If you’ve got a practice that is repugnant to core constitutional values, immunity is ridiculous and I think litigants should be free to bring constitutional claims to the federal courts,” Pattis said.
Still, Pattis said after reviewing the amended complaint in Edelglass that the plaintiffs’ chances of winning are slim.
“The state courts are largely insulated from the consequences of their decisions and it’s a crying shame,” Pattis said. “You shouldn’t be able to sue for money but you should be able to invoke federal relief when state courts hold hearings without notice.”
Wolfson said in the Edelglass case that suits against the individual state court judges in their official capacities for injunctive relief over plaintiffs’ custody hearings are not actions against the state and are therefore not barred by the 11th Amendment.
Clark said the best interest of the child standard that is universally applied in child custody cases is the basis for many of the violations of litigants’ constitutional rights.
Joan Meier, a professor of clinical law at George Washington University Law School in Washington, D.C., agreed with the plaintiffs that the best interest of the child standard “is misused to cover a host of procedural and substantive ills.” But she did not agree that custody litigation should be subject to the same constitutional protections as state interventions to protect children in cases of abuse and neglect.
“The key difference is that here, the private parents are asking the court to divide up the child—and the court has to make a decision,” she said.
Cary Cheifetz of Ceconi & Cheifetz in Summit, N.J., a past president of the New Jersey Chapter of the American Academy of Matrimonial Lawyers, disagreed with Clark on the best interest of the child standard.
“The litigants think they have a vested right to parental access, as if we’re dealing with property. Children are not property,” Cheifetz said. “It’s been settled law as long as I’ve been practicing that you look at the best interest standard.”
Meier was sympathetic to the plaintiffs’ claims of lack of due process, noting that the mothers she works with in a domestic violence clinic at the law school routinely have similar experiences.
“I would love to see a federal court slap the wrists of state courts for failing to hold proper hearings and allow evidence from each parent—before custody is switched, and before any long-term custody order is issued,” she said.
But Meier also said she had doubts about whether the plaintiffs can win. Although the case is pleaded as a class action, it will be hard for the plaintiffs to show an over-arching, unified practice of unconstitutional conduct, given the widely varying facts, context and proceedings of each case, Meier said.
Meier said she found it “almost amusing” to read the plaintiffs’ complaints, since her research suggests women who accuse their partners of physical or sexual abuse of children are more likely to lose custody of the children.
Cheifetz also sympathized with the litigants’ perceptions that the system is not working, but added that he believes they fail to consider the limited resources New Jersey courts must cope with, including the slow pace of judicial appointments.
“There’s a lot of frustration with the system. The common theme when you talk about people who are dissatisfied is the cost and the time,” Cheifetz said. “But you have to also remember you’re always going to have some amount of cases that are high-conflict and that people are going to have a negative experience.”