The opinion of the court was delivered by: BIUNNO
Barbier filed a pro se complaint challenging the constitutionality of certain New Jersey statutes dealing with the custody of minor children whose parents live separately, or are about to do so. He claimed that these statutes illegally discriminate against him on the basis of his sex, in violation of U.S.Const. Amend. 14, and 42 U.S.C. Sec. 1983.
The complaint came to the Court's early attention by reference from the clerk because of a request for convening a three-judge court. By memorandum order of November 3, 1978, the Court noted that the statute calling for that kind of tribunal, 28 U.S.C. Sec. 2281, had been repealed by Pub.L. 94-381, August 12, 1976.
In the same memorandum, the Court expressed doubts of its jurisdiction in the case, but since the complaint was pro se and inartfully drawn, it postponed entry of an order of dismissal and set a date for serving and filing an amended complaint. An amended complaint has been filed, and the defendants (other than Mrs. Barbier) have moved for dismissal.
For a period in this case, Barbier was represented by counsel, but is now again proceeding pro se. Since the papers indicated that there had been matrimonial litigation in the New Jersey Courts, the Court called for submission of a copy of the record of the proceedings there, and these have been supplied. From that record, the following brief history is culled. Page references are to the Appendix to Barbier's brief on appeal to the Superior Court, Appellate Division, Docket A-432-78, which is being marked as an exhibit here.
The Barbiers were married January 17, 1970 (56a; 67a). In June, 1976, Barbier filed an affidavit on complaint for custody in the Juvenile and Domestic Relations Court (Passaic). He said that since April 11, 1976 Mrs. Barbier was withholding the custody of the two minor children then aged 5 and 4 from Barbier, and that the best interest of the children called for return of their custody to Barbier. (1a, Case No. D-1244-75). However, it also appears that Mrs. Barbier had earlier filed in the same court for failure of Barbier to provide adequate support and maintenance of his family, and that a temporary order was entered to pay $ 40 a week, with direction to Barbier's attorney to file a complaint for visitation. (3a, Case No. D-1344-73). The affidavit for custody (1a) was evidently the response to that direction.
The history and ultimate fate of the proceedings in the Juvenile and Domestic Relations Court are far from clear other than that Judge Nitto, a named defendant here, evidently entered orders for custody, visitation and support.
In any event, the next round of litigation began with the filing, on June 14, 1977 of a complaint by Barbier for divorce. This was filed by counsel in the Superior Court, and it charged desertion by Mrs. Barbier on March 20, 1976, a desertion said to have continued for more than 12 months. It recited that there were two sons born, then aged 6 and 5 years, "both of which children are presently in the custody of and residing with" Mrs. Barbier. The complaint sought a divorce, an order permitting Barbier fair and reasonable rights of visitation with the children, and the setting of a fair and reasonable sum for their support and maintenance. There was no request for custody. (56a to 58a).
Mrs. Barbier filed an answer denying the desertion, and setting out a counterclaim for extreme cruelty with 15 separate categories thereof dating back to 1972. She sought a divorce, alimony and child support, equitable distribution of property, counsel fees and costs (67a et seq.).
Following various amendments to the pleadings and other proceedings, a dual judgment of divorce was entered November 17, 1978. This judgment recited that since the parties had been separated for 18 months, a time which accrued while suit was pending, both were entitled to a divorce (i. e., "no-fault"). It provided no alimony since Mrs. Barbier was gainfully employed. Custody was awarded to Mrs. Barbier, with visitation rights specified in Barbier. Child support was set at $ 50. a week. Barbier was directed to maintain two existing life insurance policies and pay the premiums. Arrearages for child support were set at $ 1,180., the amount to be docketed as a judgment. The disposition of allowance for counsel fees and costs, and accountants' fees, was reserved pending further application. (273a, et seq.).
In early January, 1979, Barbier filed notice of appeal to the Superior Court, Appellate Division (375a), and that appeal is yet pending.
It is to be noted that at no time since the affidavit on complaint for custody in the Juvenile and Domestic Relations Court (Passaic) has Barbier asked the New Jersey Courts for an award of custody. It is also to be noted that whatever is charged against Judge Nitto can only be grounded on judicial action by him in the proceedings in the Juvenile and Domestic Relations Court (Passaic), a matter obviously long since closed with no appeal taken so far as is shown. The award of custody by the Dual Judgment for Divorce of November 17, 1978, on the other hand, was made by Judge Newman, who evidently handled the entire Superior Court matrimonial litigation from beginning to end, in Morris County.
The core of Barbier's complaint evidently is that the provisions of N.J.S.A. 9:2-3 and 9:2-4 embody an illegal discrimination against him on account of his sex (i. e., as father of the children). The text of these two provisions is set out in the footnote.
"The minor child when in the actual care and custody of the mother in such cases, shall not be taken by the father of such child forcibly or against the ...