United States District Court, D. New Jersey
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.
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.
before the Court are defendants' motions to dismiss the
Third Amended Complaint
("Complaint"). For the reasons stated herein, those
motions to dismiss are granted.
Summary of Allegations
Complaint alleges the following facts. For purposes of this
motion to dismiss only, I must assume the truth of the
well-pleaded, factualallegations, although of course they have
not yet been tested by any fact finder at this procedural
stage. See Section II, infra.
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).
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).
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).
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).
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).
Soaring Heights Charter School is a New Jersey charter school
located in Hudson County which Malhan's children
attended. (Comp ¶ 21).
Allegations regarding Malhan case
Malhan family court proceedings
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).
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).
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).
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).
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).
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).
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).
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
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.).
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).
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,
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).
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).
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 ¶
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).
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).
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
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).
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." (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).
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).
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).
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).
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).
Malhan allegations regarding Soaring Heights
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
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
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
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.
¶¶ 157, 165).
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).
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
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
(Comp ¶ 172).
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).
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).
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).
Malhan allegations regarding Peaceful Healing
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).
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).
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).
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).
Allegations regarding Serrano case
Serrano allegations regarding family court proceedings and
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 ¶
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 ¶
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).
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?
ELVIN SERRANO: I'm not -
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 ...