This is very sad. When judges repeatedly deny parents hearings on custody, automatically give sole custody to one parent over the other without a hearing, etc. it clearly violates due process.
These litigants should also file for a writ of mandamus (supervisory order) and the NJ Supreme Court should tell the family trial courts they MUST hold hearings and listen to all the evidence regarding what is in the best interests of the children.
I don’t know about providing every litigant a free lawyer. Maybe that can be done on a sliding scale, but who would fund that cost? Perhaps some of you creative parents out there can think of a way (bake sales and Etsy sales?)
Read on below:
Judges Freed From Dads’ Challenge to NJ Custody Laws
P.J. D’Annunzio, New Jersey Law JournalJune 27, 2017 | 1 Comments
A federal appeals court has upheld the dismissal of several New Jersey family judges from a lawsuit brought by fathers challenging the constitutionality of the state’s child custody laws.
On June 27, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of 14 Superior Court judges, holding that the judges were not proper defendants in the case.
According to Third Circuit Judge Julio Fuentes’ opinion, the fathers claim that the family courts deprived them of custody of their children and interfered with their rights to the care, custody and control of their children, without a full hearing, in violation of the 14th Amendment.
They specifically allege that court policy denies parents a plenary hearing when one parent loses custody. The fathers further claim that, although mothers and fathers are theoretically treated equally in custody disputes, in practice courts favor mothers. Additionally, they maintain that New Jersey discriminates against indigent parents by not providing them with counsel in a divorce proceeding or other family disputes that results in a loss of custody.
The Family Part judges who were named as defendants in the suit were Lawrence DeBello, Timothy Chell, Kathleen DeLaney, James DeMarzo, Madelin Einbinder, Marlene Lynch Ford, Christopher Garenger, Lawrence Jones, Severiano Lisboa, Anthony Massi, John Tomasello, Sherri Schweitzer, Nancy Sivilli and Maureen Sogliuzzo.
Fuentes said that, before the validity of the plaintiffs’ claims could be addressed, the question of whether the family court judges should even be party to the suit had to be answered. The case was filed under the Declaratory Judgment Act, with the fathers seeking declaratory and injunctive relief relating to the rulings the judges made in their respective custody cases.
The answer hinged on whether the judges in question are neutral arbiters of the New Jersey custody statute, or if they have enough flexibility under the statute and policies that they become enforcers, Fuentes said.
“In this case, because we conclude that the judicial defendants have acted in an adjudicatory capacity and not in an enforcement capacity, they are not proper defendants,” Fuentes said.
“To be sure, the best-interests-of-the-child standard statute gives state court judges broad discretion to determine a custody situation. State court judges also have broad discretion to decide motions on the papers under New Jersey Supreme Court and Appellate Division precedent,” he added.
However, he said, “the state court judges themselves do not have any right to initiate these actions. Instead, a parent must initiate a custody dispute. Nor were the state court judges here given any administrative function.”
Jersey City-based lawyer Paul A. Clark, who represented the fathers, said the the U.S. Supreme Court “has repeatedly allowed state court judges to be defendants when state courts violate federally guaranteed constitutional rights,” and the Third Circuit “has also now adopted an extremely narrow interpretation of the Declaratory Judgment Act which largely eviscerates it.”
“That said, the Court has simply sidestepped and avoided the serious problem here which is that New Jersey, through its court system routinely strips parents of the fundamental right to the custody of their children, and does so in summary, often ex parte proceedings,” Clark said in an email. “Because the Third Circuit decision only said that the judges named as defendants were not the proper defendants we will continue to pursue suits against New Jersey naming other defendants.”
Benjamin Zieman, of the state Attorney General’s Office, who represented the judges, did not respond to a request for comment.