A group of fathers in New Jersey have banded together to bring a class action lawsuit against five family court judges. They allege their constitutional rights were violated by orders made by these judges that deprived them of a relationship with their children. They also claim they were not afforded due process or equal protection under the law.
Their main argument is that by basing custody decisions on the “best interests of the child” their rights are violated. They also allege that lack of appropriate notice before a court order is made regarding their children is a breach of due process.
Due process, also called “natural justice”, is the right to have an unbiased hearing with an opportunity to present your evidence in defence to the claim against you.
Surender Malhan is one of the fathers in the class action. He alleges that the mother of his two children provided him with two hours notice she would be seeking sole custody of the children. He was given no real opportunity to organize rebuttal evidence to the allegations he was an unfit parent.
When he spoke to the media about his situation, family court Judge Nancy Sivilli issued a gag order preventing him from speaking publicly about his case. Mr. Malhan’s lawyer is now suing Judge Sivilli for First Amendment (free speech) violations.
The State of New Jersey is fighting back and brought a court application seeking a summary dismissal of the class action suit, arguing the fathers were using their court action to effectively appeal the orders made against them in the Family Court.
Judge Freda Wolfson presided over the State’s application, and refused to dismiss the fathers’ action, relying on a 2013 appellate decision, B.S. v. Somerset County, where the Third Circuit Court of Appeals refused to dismiss an action brought by a mother in Pennsylvania who alleged she lost custody of her daughter in a hearing that did not afford her due process.
The State also unsuccessfully argued that “sovereign immunity” protected New Jersey from this type of lawsuit. Judge Wolfson ruled the individual judges were the focus of the court action, not the State of New Jersey.
The debate over the usefulness of the “best interests of the child” test for determining custody has been simmering for a decade or more. It is often suggested that proponents of shared parenting want to eliminate the “best interests” test. Perhaps some do, but I believe that Courts simply need to embrace the substantial psychological literature that resoundingly reveals that children need a full relationship with each parent and that is what is in their best interests.
Lawdiva aka Georgialee Lang