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Family Civil Liberties Union v. State

United States District Court, D. New Jersey

May 29, 2019

FAMILY CIVIL LIBERTIES UNION, SURENDER MALHAN, for himself and as parent of E.M., and V.M., ELVIN SERRANO, for himself and as parent of L.S., ZIA SHAIKH for himself and as parent of M.S., S.S., and H.S., Plaintiffs,
STATE OF NEW JERSEY, et al, Defendants.


          KEVIN MCNULTY. U.S.D.J.

         The plaintiffs, Surender Malhan, Elvin Serrano, Zia Shaikh, and the Family Civil Liberties Union, seek relief under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. The plaintiffs do not challenge particular rulings of the state family court. Rather, they assert that New Jersey's statutes, court rules, and case law do not provide sufficient constitutional protection of their custody rights in family court proceedings. Two of the plaintiffs have asserted the key claims here in prior actions, where they were denied in decisions upheld by the United States Court of Appeals for the Third Circuit.

         Now before the Court are defendants' motions to dismiss the Third Amended Complaint ("Complaint").[1] For the reasons stated herein, those motions to dismiss are granted.

         I. Summary of Allegations

         Plaintiffs' Complaint alleges the following facts. For purposes of this motion to dismiss only, I must assume the truth of the well-pleaded, factual[2]allegations, although of course they have not yet been tested by any fact finder at this procedural stage. See Section II, infra.

         a. Parties

         The plaintiffs, Surender Malhan, Elvin Serrano, and Zia Shaikh, are New Jersey residents who have pending proceedings in New Jersey Superior Court, Family Division. (Comp ¶ 3). Each of these individual plaintiffs has lost custody in family court child-custody proceedings. (Comp ¶ 11).

         Plaintiff Family Civil Liberties Union ("FCLU") is a § 501c(4) organization incorporated in New Jersey. (Comp ¶¶ 4, 5). FCLU has approximately 7, 500 members across the United States. Nearly all of its 750 New Jersey members are or have been involved in New Jersey family court custody proceedings. (Comp ¶¶ 6, 7).

         Defendant Gurbir Grewal is the Attorney General of New Jersey. He and ten fictitious "John Doe" defendants are named in their official capacities only, as persons "presumably. . . tasked with administ[ering] and enforcing New Jersey law." (Comp ¶¶ 14, 22).

         Defendant Judge David Katz is the presiding judge of the family division of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶¶ 15, 37). Defendant Judge Donald Kessler is a judge of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶ 17). Judge Marcella Matos Wilson is a judge of the family division of the Essex County Superior Court who has presided over Serrano's family court dispute. (Comp ¶ 18).

         Defendant Richard Federici was hired by the State of New Jersey to perform counseling services for plaintiff Serrano's child. (Comp ¶ 19). Defendant Chester Sigafoos was hired by the State of New Jersey to do an evaluation of plaintiff Malhan and his family. (Comp ¶ 20).

         Defendant Soaring Heights Charter School is a New Jersey charter school located in Hudson County which Malhan's children attended. (Comp ¶ 21).

         b. Allegations regarding Malhan case

         i. Malhan family court proceedings

         Malhan's allegations grow out of a bitter divorce from Alina Myronova and a custody dispute over the couple's two children that began in 2011. (Comp ¶¶ 23-27). Over the course of those family court proceedings Malhan and Myronova made accusations against each other, including that Malhan was mentally unstable, that Myronova made several false representations, and that each had engaged in miscellaneous criminal conduct. (Comp ¶¶ 28-35). In early 2017, Hudson County prosecutors indicted Malhan based on accusations made by Myronova, but that indictment was later dismissed. (Comp at pp. 9-12).[3]

         In 2017, Myronova filed a motion for an order to show cause in which she requested and received exclusive custody of their two children. (Comp ¶ 27). In making the custody determination, which was later relaxed, Judge Katz "appeared to" have relied upon information from the New Jersey Division of Child Protection and Permanency ("DCPP") that was provided to him ex parte and not entered into the record (hereinafter, the "DCPP Interim Report"). (Comp at pp. 14 -15) Plaintiffs take issue with the manner in which the DCPP communicated this information to the family court. (Comp ¶¶ 42-47).

         According to the plaintiffs, the family court "appeared to entirely disregard all of the counter evidence presented by Malhan" and "appeared to be relying on the [DCPP Interim Report]" in making its custody determination. (Comp ¶¶ 44, 45).

         Thereafter, in September 2017, Malhan filed his own motion for an order to show cause in an attempt to regain custody of his children. (Comp ¶¶ 47-53). In that motion Malhan complained that Myronova's boyfriend, Jeff Rothstein, was spending time alone with the children in violation of a prior family court order. (Id.). The family court has not taken any action to date in response to the allegation that Myronova violated its order. (Comp ¶ 58).

         Malhan wanted the family court to hear evidence at an October 2017 hearing from a psychologist whom he had hired, Dr. Lidia Abrams, but the court denied that request. (Comp ¶¶ 54-62, 136-38, 149). During the October 2017 hearing, the family court also denied Malhan's renewed request to regain custody of his children. (Comp ¶¶ 63-67). Judge Katz based his decision to deny Malhan custody in part on the DCPP Interim Report, which articulated "child welfare concerns." (Comp ¶ 64). Judge Katz declined to disclose to the parties "what the children may or may not have said" to DCPP agents who created the Interim Report. (Id.). Malhan objects that this DCPP Interim Report amounts to "secret evidence" that was not admitted into the record, and therefore not subject to "meaningful opposition." (Comp ¶¶ 65-66).

         Later in October 2017, the family court did permit the parties to review the DCPP Interim Report at the courthouse but did not permit them to keep a copy. (Comp ¶¶ 71-72). In describing the DCPP Interim Report, the family court noted that it was "relevant to. . . the emergent suspension of [Malhan's] visitation [privileges with his children]", and that it "raises some significant concerns about some interactions, and it quotes the children." (Comp ¶ 73).

         Malhan's counsel took issue with the admissibility of the DCPP Interim Report. (Comp ¶ 76). Nonetheless, the family court determined that it would be "shunning [its] responsibilities if [it] turned a blind eye to" the DCPP Interim Report. (Comp ¶ 77). Therefore, the family court reasoned that until it received "psychological evaluations that contradict or explain or create some type of factual issue [with regard to the DCPP Interim Report, ] DCPP's recommendations and intimations need to be respected." (Id.). On this basis, the family court suspended Malhan's custody privileges and only allowed him limited, supervised visitations with the children. (Comp ¶¶ 77, 115).

         At this point Malhan attempted to submit the psychological report of his retained psychologist, Dr. Abrams, which purportedly gave Malhan "a clean bill of health." (Comp ¶ 80). However, the family court would not consider Dr. Abrams's report until the DCPP finished its full assessment. From the Complaint, it can be inferred that the DCPP Interim Report, as the name implies, was an initial appraisal that would be followed by a more complete DCPP assessment. (Comp ¶ 81). The family court noted that without the full DCPP assessment, it was "not inclined to ignore the concerns raised by DCPP," which-although this is not directly stated in the Complaint-appear to be based on suspicions that Malhan may have had suicidal ideations. (Id.; Comp ¶ 120).

         In November 2017, the DCPP completed its full assessment and submitted its findings to the family court. (Comp ¶ 102). As part of its assessment, the DCPP hired Dr. Sigafoos to conduct an evaluation of Malhan. This evaluation included an approximately hour-long interview in October 2017 and resulted in a report by Dr. Sigafoos (the "Sigafoos Report"). (Comp ¶¶ 107, 110). During a November 30, 2017 hearing, the family court announced that the previous intimations that Malhan was suicidal were unfounded. (Comp ¶¶ 116, 120). Nonetheless, said the court, the Sigafoos Report "raised some collateral concerns" about Malhan and his "parenting ability." (Comp ¶¶ 118, 120). The family court then allowed the parties to review the Sigafoos Report. (Comp ¶¶ 117-20). Malhan challenged the admissibility of that report on a variety of grounds. (Id.).

         During this November 2017 family court hearing, Malhan again requested custody of his children. (Comp ¶ 121). The family court did not formally admit the Sigafoos Report into evidence but referred to it in deciding not to grant complete custody to Malhan. (Comp ¶ 122). However, in an order dated November 30, 2017 (the "November 2017 Order"), Judge Katz did lift some of the prior restrictions on Malhan's custody rights and allowed him to have unsupervised daytime visits with the children on the weekends for the first two weeks (so as to transition the children back into increased parenting time with Malhan), to be followed by three overnight visits per week from Tuesday through Friday. (Comp ¶¶ 123-25).

         Despite being granted limited custody rights in the November 2017 Order, Malhan generally takes issue with (a) the limitations imposed during the twelve-week period between the DCPP Interim Report and the November 2017 Order (whereby he was only permitted to see his children for a total of about ten hours in a supervised setting); and (b) the current, less onerous but still significant limitations on his custody. (Comp ¶¶ 115, 125-30). Malhan Finds this twelve-week period and the custody limitations in general to be problematic because the DCPP assessments were not admitted into evidence, Malhan did not have complete access to some of those assessments, he did not get the chance to cross-examine the authors of those assessments, other witnesses presented information to the family court ex parte, and the family court allegedly did not make sufficient findings of fact with respect to its orders. (Comp ¶¶ 115, 127-30, 247-54).

         In January 2018, the family court permitted Malhan's retained expert, Dr. Abrams, to review a portion of the Sigafoos Report. (Comp ¶ 132). According to the plaintiffs, Dr. Abrams thought the reviewed portion of the Sigafoos Report included "glaring deficiencies." (Comp ¶¶ 132-136). Meanwhile, Dr. Abrams's own evaluation concluded that Malhan did not pose a danger to the children and that the separation of the children from their father was contrary to the best interests of the children. (Comp ¶ 149).

         Malhan asked the family court to hear from Dr. Abrams and other witnesses, but the court denied this request. (Comp ¶¶ 150-52). Malhan filed a motion with the New Jersey Appellate Division for leave to file an interlocutory appeal, but that motion was denied. (Comp ¶ 153). According to the plaintiffs, there is no right to appeal the suspension or termination of custody in New Jersey because these types of family court orders are not final for appeal purposes. (Comp ¶ 154).

         Despite the November 2017 Order granting Malhan limited custody rights, Myronova refused to comply and did not permit Malhan to see the children. (Comp ¶ 156). In December 2017, Malhan filed a motion for an order to show cause asking the family court to enforce its November 2017 Order. (Comp ¶ 159).

         Judge Kessler-who had been out on medical leave during the period that Judge Katz presided-returned from leave and heard that motion on December 21, 2017. (Comp ¶ 205). Instead of enforcing the November 2017 Order, Judge Kessler again suspended all of Malhan's unsupervised parenting time and all overnight visits with the children. (Comp ¶ 206). Judge Kessler's determination was based in part on the Sigafoos Report. (Comp ¶¶ 206-07). Plaintiffs again took issue with the fact that the Sigafoos Report was not admitted into evidence, that "Judge Kessler appeared to accept and state the allegations as true," that Sigafoos had never testified or been subject to cross examination, and that the findings were contradicted by the opinion of Dr. Abrams. (Comp ¶¶ 208-09).

         Judge Kessler also based his determination in part on information provided by the DCPP that one of the children had reported that Malhan was questioning the child about Myronova, in violation of one of Judge Kessler's prior orders. (Comp ¶¶ 210-11). Judge Kessler had not read the report by Dr. Abrams because it is "a party report" and he wanted to "get the independent evaluations" and "go from there." (Comp ¶ 215).

         Malhan then participated in supervised visits with his children at a center called Peaceful Healing. (Comp ¶¶ 219-22). The owner of Peaceful Healing reported to the family court that Myronova and Rothstein "carelessly" made "derogatory" comments about Malhan in the presence of the children, insinuating that Malhan was a danger to be around. (Id.).

         In January 2018, Malhan filed another motion for an order to show cause asking the family court to restore full custody, and to prevent Myronova from listening in on phone calls between Malhan and the children. (Comp ¶ 225). In February 2018, the family court did order that Myronova not listen in on the phone calls between Malhan and the children, but denied Malhan's request to vacate the custody restraints. (Comp ¶¶ 226-27). In denying this motion, the family court made repeated reference to the Sigafoos Report. (Comp ¶ 228). Malhan again objected to any consideration of the Sigafoos Report. (Comp ¶ 229).

         On February 9, 2018, the family court restored Malhan's custody rights in accordance with the November 30 order, which had begun a transition process. In its order (the "February 9 Order"), the court ordered that Malhan's unsupervised parenting time would resume on February 10, 2018, and that his overnight unsupervised parenting time would resume on Wednesday, February 21, 2018 "at school let out."[4] (Comp 238). Malhan nonetheless contends that the de facto suspension of his parenting time between December 21, 2017 and February 21, 2018 violated due process. (Comp ¶ 239).

         Despite the February 9 Order, Myronova refused to cooperate and did not relinquish custody on February 10. (Comp ¶¶ 241-42). Plaintiffs, without elaboration, contend that Myronova's noncooperation prompted the family court to again suspend all of Malhan's unsupervised parenting time. (Comp ¶¶ 243, 255). On February 15, 2018, the court ordered him to have supervised parenting time with the oversight of Maureen Grippo. (Id.). Since February 15, 2018, Malhan has had around two hours of supervised parenting time per week. (Comp ¶ 244).

         On June 8, 2018, Judge Kessler recused himself from any further involvement in the Malhan/Myronova family court matter; he was replaced by Judge Katz. (Comp ¶¶ 258, 270). In July 24, 2018, Judge Katz ordered that Malhan receive two days of unsupervised parenting time two days a week. (Comp ¶¶ 260, 263). Myronova refused to cooperate and Malhan began reporting to the police that Myronova had interfered with his custody, but the police took no action. (Comp ¶¶ 265, 267). When Malhan complained of this conduct to the family court, it did not sanction Myronova, and when Judge Katz learned of Malhan's reports to the police he "scowled and shook his head at Malhan." (Comp ¶ 268). Through September 2018, Malhan has only been permitted around one hour per week of supervised parenting time. (Comp ¶ 269).

         As of the date of the filing of the Complaint, the current order of the family court provides that Malhan may not have any unsupervised visitation time with his children. (Comp ¶ 246). Throughout the Complaint, Malhan alleges that in making its determinations the family court selectively evaluated inadmissible evidence and ignored the evidence he tried to present. (Comp ¶¶ 68, 79, 82, 213).

         Additionally, Malhan complains that he was not allowed to have counsel present when being evaluated by DCPP officials. (Comp ¶¶ 272-278). In September and October 2017, when Malhan met with DCPP officials for an evaluation of his potential suicidal ideations, DCPP told him that they would not speak to him in the presence of his legal counsel. (Id.). Malhan contends that if a person refuses to be evaluated by DCPP without counsel present, DCPP reports to the family court that the parent is not being cooperative. (Comp ¶ 274).

         ii. Malhan allegations regarding Soaring Heights

         In 2017, Malhan's children attended Soaring Heights Charter School ("Soaring Heights"). Soaring Heights was given a copy of the November 2017 Order, which provided the following:

1. That the restraints on [Malhan's] parenting time have been lifted pursuant to the DPC&P report received by the Court on November 21, 2017 for the reasons stated on the record.
2. That [Malhan] shall have unsupervised day-time visits with the children on Saturdays and Sundays from 8:00AM until 7:00PM beginning December 2, 2017 and continuing for two consecutive weekends, so as to transition the children back into parenting time with Defendant, for the reasons stated on the record.
3. After the two weekends of unsupervised visitation conclude, [Malhan] is to have unsupervised parenting time with the children on Tuesdays after school until Friday mornings at school drop-off. The remaining days will be parenting time for [Myronova].
4. Transfers of the children between [Malhan] and [Myronova] will continue to take place at the Bayonne Police Station.

         (Comp ¶¶ 157, 165).

         Despite this Order, Myronova refused to give Malhan the children on the two weekends starting December 2 and 9, 2017. (Comp ¶¶ 167-68). Nonetheless, Malhan sought to pick up his children after school on Tuesday, December 12, 2017. (Comp ¶¶ 170-71).

         Malhan contacted Soaring Heights in advance to inform them of the November 2017 Order and let them know that he would be picking up the children from school on December 12 and that they would remain with him through December 14. (Comp ¶ 171). Soaring Heights's attorney responded by sending Malhan's attorney an email on December 11, in which the attorney communicated that the school would not permit Malhan to pick up the children due to a perceived ambiguity in the November 2017 Order:

The Order requires that child-transfers between mom and dad occur at the Bayonne Police Station. The Order is silent on the manner in which student pick up and drop off should take place.
Not having information on the circumstances over why the court has restricted child transfers in such manner, and having the utmost responsibility to maintain a safe school environment, the School will request clarification of the November 30, 2017 Order by letter tomorrow. In the meantime, the School will continue implementation of the status quo from last week, namely with mom picking up the children at School.

(Comp ¶ 172).

         Despite this email, on Tuesday, December 12, 2017, Malhan arrived at Soaring Heights to pick up his children but the school refused to give the children to him. (Comp ¶ 181). The school similarly refused to allow Malhan to pick up the children on Wednesday and Thursday of that week. (Comp ¶ 182). Malhan asserts that the school's refusal to give him his children was based on some unspecified, preexisting animus towards him. (Comp ¶¶ 187-89).

         On December 13 Malhan's counsel contacted counsel for Soaring Heights for an explanation of the school's refusal. (Comp ¶ 183). The school's attorney provided the same reasons as in the December 11 email. (Comp ¶¶ 184-85). Malhan had no parenting time with his children during the week of December 12. (Comp ¶ 186).

         On December 18, 2017, Malhan filed a complaint and motion for order to show cause in the Hudson County Superior Court seeking an order that would direct Soaring Heights to comply with the family court's November 30 Order. (Comp ¶ 192). Soaring Heights opposed Malhan's application. (Comp ¶ 193). The order to show cause was denied and the state court required Soaring Heights to provide a written response to the request for injunctive relief by January 10, 2018. (Comp ¶ 194). This motion for an order to show cause was mooted by the family court's decision to suspend all of Malhan's unsupervised parenting time, and the parties agreed to dismiss the Hudson County case without prejudice. (Comp ¶¶ 196, 204, 206).

         iii. Malhan allegations regarding Peaceful Healing

         In December 2017, Malhan was limited to having supervised visitation with his children under the supervision of Peaceful Healing. (Comp ¶ 305). Malhan and the children had a supervised visit with Peaceful Healing scheduled for December 29, 2017. Malhan proposed that they all participate in a family karate class. (Comp ¶ 308). The head of Peaceful Healing agreed to this proposal and discussed the plan with Myronova. (Comp ¶ 309).

         The Peaceful Healing supervisor at the time of the proposed December 29 karate excursion was Ms. Daru. (Comp ¶ 311). Although Ms. Daru prohibited recording, Malhan made an audio recording of a conversation involving the children and Ms. Daru. (Comp ¶¶ 310, 312-13). At that time, the children, "apparently acting at the direction of their mother," said they did not want to go to karate. (Comp ¶ 316). Malhan insisted that they go because "karate class was the plan that everyone had agreed to and he did not want to change it." (Comp ¶ 317). Ms. Daru thought that if the children did not want to go to karate then they should change the plans. (Comp ¶ 318). Malhan reiterated that karate was the agreed upon plan and continued to drive to the family's residence to pick up the children's karate uniforms. (Comp ¶ 319).

         When they arrived at the apartment Malhan went inside to get the uniforms and left the children in the lobby with Ms. Daru. (Comp ¶¶ 321-22). When Malhan returned to the lobby, Ms. Daru told Malhan that she was ending the visit. (Comp ¶ 323).

         At some point in the following weeks, a letter was sent to the family court on Peaceful Healing stationery entitled "Parent Chaperone Summary." (Comp ¶ 324). The Summary was not court ordered and was not initially shared with the parties. (Comp ¶¶ 325-26). The Summary included a series of allegedly false accusations against Malhan, including that he had "angrily yelled" at the children multiple times, and that he talked "about how abuse is not bad because it sets discipline and order for the child." (Comp ¶ 327). Malhan asserts that the audio recording of the incident shows these accusations to be false. (Comp ¶ 328). This Summary made it more difficult for Malhan to have any parenting time with his children. (Comp ¶ 329). Malhan claims that the Summary was defamatory. (Comp ¶¶ 330-31).

         c. Allegations regarding Serrano case

         i. Serrano allegations regarding family court proceedings and Dr. Federici

         Plaintiff Serrano and his wife divorced in 2008. (Comp ¶ 282). They have one child, a daughter, who was fifteen at the time plaintiffs filed the Complaint, (Comp ¶ 283). Under the terms of their divorce, legal custody was joint and they shared parenting. (Comp ¶ 284). Between the divorce and September 7, 2017, Serrano's daughter lived with him around fifteen to twenty-two days per month. (Comp ¶ 285).

         Citing concerns about abuse by his ex-wife, Serrano filed a motion to obtain full custody of his daughter around March 2017. (Comp ¶ 286). As a result of this request, the family court asked Dr. Richard Federici to counsel Serrano's daughter. (Id.). Serrano also met with Federici several times between June and August 2017. (Comp ¶ 287). During a July 5, 2017 phone call, Dr. Federici told Serrano that Serrano was free to stop by his office to speak with Dr. Federici, who would try to give Serrano "a few minutes between patients" if he had time. (Comp ¶ 288).

         Around August 28, 2017, Dr. Federici sent a letter to the family court offering advice on the Serrano custody dispute. (Comp ¶ 289). The next day, Serrano went to Dr. Federici's office around 12:30 P.M. to discuss the recommendations in Dr. Federici's letter. (Comp ¶ 290). Serrano recorded their interactions. (Comp ¶ 294). Initially, Dr. Federici told Serrano that it was not a good time to speak because Dr. Federici had a conference call. (Comp ¶ 291). Serrano intimated that he would depose or subpoena Dr. Federici in the family court matter. (Comp ¶ 347). Serrano then left the office and returned around 1:00 P.M. in the hopes that they could speak after Dr. Federici's conference call. (Comp ¶¶ 292, 346).

         When Dr. Federici saw Serrano in the lobby area Dr. Federici was visibly upset to see him. (Comp ¶ 293). Dr. Federici said, "you're interfering with my practice, okay, go ahead, I'm going to give you a minute, please go." (Comp ¶ 351). Serrano then began discussing the August 28 letter that Dr. Federici sent to the family court. (Id.). The following exchange took place:

ELVIN SERRANO: You say that you don't know the cause of stress for [child] and you recommending that [child] still resides with her mother and -
DR. FEDERICI: -- I didn't say, it was [name] or it was you -- I didn't say who it was. I said, I'm not blaming a parent. What I'm going to do is I'm going to set this up so we take care of [child] and not blame parents, that's what I said. That's the point of that letter. It's not to determine blame. I will not do that. Don't put me in the corner. You're going to find out something about me, okay, are you threatening me right now?
DR. FEDERICI: - did you just threaten me?
ELVIN SERRANO: What are you talking about ~
DR. FEDERICI: -- did you just threaten me, Elvin? I think you just threatened me -
ELVIN SERRANO: ~ I'm going to (indiscernible)~
DR. FEDERICI: - I think you just threatened me with your hand - you put your hand up like you were going to hit me -
ELVIN SERRANO: - (indiscernible) --
DR. FEDERICI: -- you put your hand up like you were going to hit me. Don't you ...

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