HAGBERG et al v. LYNCH FORD

Filing 27

OPINION filed. Signed by Judge Brian R. Martinotti on 9/26/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
KARL HAGBERG, for himself and as
:
parent of E.H., A.H., and C.H., and ZIA
:
SHAIKH, for himself and as parent of M.S., :
S.S., and H.S.,
:
:
Plaintiffs,
:
:
v.
:
:
:
STATE OF NEW JERSEY, CHRIS
:
CHRISTIE, in his official capacity,
:
CHRISTOPHER PORRINO, in his official :
capacity, MICHELLE M. SMITH, in her
:
official capacity, STUART RABNER, in his :
official capacity, and JOHN DOES 1-10,
:
:
Defendants.
:
____________________________________:

Civil Action No. 3:16-cv-1189-BRM-LHG

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendants the State of New Jersey, Governor Chris Christie, Attorney
General Christopher Porrino, Clerk of Superior Court Michelle M. Smith, and New Jersey
Supreme Court Chief Justice Stuart Rabner’s (collectively, “Defendants”) Motion to Dismiss the
claims against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 1 (ECF
No. 19.) Plaintiffs Karl Hagberg (“Hagberg”) and Zia Shaikh (individually, “Shaikh”; collectively
with Hagberg, “Plaintiffs”) oppose the motion. (ECF No. 20.) Pursuant to Federal Rule of Civil

1

While Defendants move to dismiss all of Plaintiffs’ claims pursuant to Rule 12(b)(6), Defendants’
Motion to Dismiss pursuant to Rule 12(b)(1) applies only to Plaintiffs’ claim for a violation of
their Fourteenth Amendment right to equal protection (Count III).

Procedure 78(a), the Court heard oral argument on July 18, 2017. For the reasons set forth herein,
Defendants’ Motion to Dismiss (ECF No. 19) is GRANTED and Plaintiffs’ Amended Complaint
(ECF No. 15) is DISMISSED.
I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
For the purposes of this Motion to Dismiss, the Court accepts the factual allegations in the
Amended Complaint as true, considers any document “integral to or explicitly relied upon in the
complaint,” and draws all inferences in the light most favorable to Plaintiffs. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see Phillips v. Cty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008). A court may also consider and take judicial notice of matters of public
record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Court documents are among such
matters of public record. McTernan v. City of York, Penn., 577 F.3d 521, 526 (3d Cir. 2009).
In this action brought pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28
U.S.C. § 2201, Hagberg and Shaikh each assert separate but identical claims against Defendants
related to their respective child custody disputes. Each alleges his Fourteenth Amendment right to
due process was violated because his parenting time with his minor children was limited without
“a full and prompt hearing.” (ECF No. 15 ¶¶ 2, 8.) Plaintiffs allege “Defendants have established
policies, procedures, and precedents denying parents a full and prompt hearing when stripping one
parent of physical and legal custody and giving full physical and legal custody to another parent.”
(Id. ¶ 8.) Plaintiffs seek dramatic changes to the ways New Jersey courts and statutes govern
custody proceedings between parents. Plaintiffs ask this Court to: (1) enjoin New Jersey courts
from reducing a parent’s legal custody of children without a plenary hearing within ten days (Count
I); (2) declare the “best interests of the child standard” used to decide custody disputes as
unconstitutional as applied to Plaintiffs in their respective cases (Count II); (3) declare New Jersey

2

courts have discriminated against Plaintiffs based on their gender and against indigent parents
involved in custody disputes (Count III); and (4) declare Plaintiffs have fundamental rights to
custody of their children that cannot be taken away without due process (Count IV).
Plaintiffs initially filed this action against Judge Marlene Lynch Ford, a New Jersey
Superior Court Judge in Ocean County who presided over Plaintiffs’ respective custody
proceedings. (See ECF No. 1.) The Court ordered Plaintiffs to amend the Complaint following the
Court’s dismissal of the claims against Judge Ford, as well as virtually identical cases brought
against other Superior Court judges in which Hagberg and Shaikh were plaintiffs. 2 (ECF No. 14.)
Plaintiffs then filed the Amended Complaint against Defendants. (ECF No. 15.) Defendants later
filed the Motion to Dismiss. (ECF No. 19.)
A. Hagberg’s Factual Allegations
Hagberg alleges the Superior Court issued several orders limiting Hagberg’s parenting time
with his three children, and these orders were often issued without a plenary hearing. (ECF No. 15
¶¶ 9-37.) Though Hagberg’s children’s mother, Anna Hagberg, alleged he hit one of the children,
no evidence was presented to the court supporting this allegation. (Id. ¶ 11.) Hagberg also alleges
Superior Court Judge Lawrence Jones, in response to Anna Hagberg’s allegation, ordered on
August 14, 2014, that Hagberg’s parenting time be limited to eleven hours on Wednesdays and

2

The Honorable Freda L. Wolfson, in a single opinion, granted motions to dismiss in Allen v.
DeBello, Civil Action No. 14-0760 and Allen v. Chell, Civil Action No. 15-3519, in which Hagberg
and Shaikh, as well as several other plaintiffs, asserted claims against New Jersey Superior Court
judges that were nearly identical to Plaintiffs’ claims in this case. Judge Wolfson held the
defendant judges were not the proper defendants for declaratory relief under 42 U.S.C. § 1983
because they had acted as neutral arbiters in the custody proceedings. Allen v. DeBello, No. 140760, 2016 WL 1670927, at *14 (D.N.J. Apr. 27, 2016), aff’d sub nom., 861 F.3d 433 (3d Cir.
2017). Judge Wolfson took notice of Plaintiffs’ Complaint in this case and stated while “Hagberg
and Shaikh have not yet responded to [Judge Ford’s] motion to dismiss filed in [this case] . . .
Plaintiffs would be well-advised to tailor their opposition” to her rulings in Allen v. DeBello and
Allen v. Chell. Id. at *3 n.5.
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twelve hours on Sundays, including no overnight parenting time. (Id. ¶ 12.) Hagberg repeatedly
demanded equal parenting time, and while Judge Jones increased Hagberg’s parenting time, he
has not granted him equal time. (Id. ¶ 14.) On January 6, 2015, Judge Ford terminated all parenting
time between Hagberg and his daughter, E.H., until further notice. (Id. ¶ 16.) On August 5, 2015,
Judge Ford, without holding a plenary hearing or “finding . . . abuse or neglect,” suspended
Hagberg’s time with all of his children in an ex parte proceeding until further order of the court.
(Id. ¶¶ 19-20.) On October 16, 2015, Judge Ford permitted Hagberg to see his son, C.H., for a few
hours per week, but far less than the fifty percent custody Hagberg sought. (Id. ¶ 23.) On February
5, 2016, Judge Ford, without a plenary hearing or making any findings of abuse or neglect,
terminated all of Hagberg’s parenting time with C.H. until further notice. (Id. ¶¶ 29-30.) Judge
Ford reasoned Hagberg spending time with his son and not his daughters, with whom Hagberg’s
relationship was strained, caused emotional distress to his daughters. (Id. ¶ 31.)
In late 2015, Hagberg filed an interlocutory appeal with the New Jersey Superior Court,
Appellate Division (“Appellate Division”) to challenge Judge Ford’s interim custody order, but he
could not afford the filing fee. (Id. ¶ 25.) He consulted with a pro bono attorney, who advised him
an interlocutory appeal was unlikely to be granted and therefore a waste of money. (Id. ¶ 26.)
Plaintiffs allege upon information and belief “the [A]ppellate [D]ivision almost never grants
interlocutory appeals from family court,” and as a result “an interlocutory appeal is not an adequate
remedy to address the deprivations of rights suffered by . . . Plaintiffs.” (Id. ¶¶ 27-28.)
B. Shaikh’s Factual Allegations
In October 2013, Shaikh filed for divorce from his wife Laura Germandig-Shaikh
(“Germandig”), with whom he is the parent of three minor children. (Id. ¶ 38-39.) On January 18,
2014, Germandig filed for a Temporary Restraining Order (“TRO”) against Shaikh, which was

4

dismissed after a hearing on January 31, 2014. (Id. ¶ 40.) Despite the court’s finding that nothing
in Germandig’s testimony alleged domestic violence, Shaikh was ordered to vacate his house. (Id.)
On April 2, 2014, Germandig filed a motion demanding full custody of the children. (Id. ¶ 41.)
The motion had a return date of May 2, 2014. (Id.) On April 23, 2014, Germandig’s attorney
appeared before Superior Court Judge Madelin Einbinder for a case management conference. (Id.
¶ 42.) Shaikh had not been notified of the conference, and his counsel did not attend. (Id.) The
court attempted to reach Shaikh’s attorney but was unsuccessful. (Id. ¶ 43.) At the conference,
Germandig’s attorney made an oral request for an award of exclusive custody to Germandig. (Id.
¶ 44.) Germandig submitted an affidavit in which she accused Shaikh of verbal harassment and
claimed he had kicked their daughter some time in February. (Id.) The court granted Germandig
“sole, legal and residential custody of the children,” and barred Shaikh from the family’s residence.
(Id. ¶ 47.) The court further stated, “there is a concern that . . . Mr. Shaikh may try to take the
children,” though there was no factual basis provided for this concern. (Id. ¶ 49.)
On June 13, 2014, the court heard oral argument on Germandig’s motion. (Id. ¶ 50.) Shaikh
appeared pro se and contradicted Germandig’s allegations of abuse as well as the claim he, as a
Pakistani national, was planning to flee the country. (Id.) Shaikh testified he is a United States
citizen who had resided in this country for twenty-six years. (Id.) Nevertheless, as a result of the
June 13, 2014 proceeding, Judge Einbinder ordered, inter alia: (1) Germandig would continue to
have full legal and physical custody; (2) Shaikh’s parenting time with his daughter, M.S., was
suspended indefinitely; (3) Shaikh would be allowed two short visits each week with his other two
children, but no overnights; (4) Shaikh and Germandig would mediate the issue of custody; (5)
Shaikh could request a plenary hearing if no custody agreement was reached; (6) Shaikh must

5

attend anger management; and (7) Shaikh must turn over a variety of documents including his
passport. (Id. ¶¶ 51-53.)
On August 29, 2014, Judge Einbinder ordered Shaikh’s parenting time with his children
suspended until further notice. (Id. ¶ 54.) Plaintiffs allege they do not know the reason for this
order but surmise, “the suspension of parenting time appears to have been based on unsubstantiated
allegations that Shaikh was going to flee the country.” (Id. ¶ 55.) Shaikh has rarely seen his
children since the August 29, 2014 order despite his repeated demands that his parental rights be
restored. (Id. ¶¶ 57-58.) Plaintiffs claim the restrictions on Shaikh’s parenting time were imposed
with no plenary hearing or finding of abuse or neglect. (Id. ¶ 61.) In 2016, Shaikh filed a motion
for leave to file an interlocutory appeal with the Appellate Division, which was denied. (Id. ¶ 63.)
C. Plaintiffs’ General Factual Allegations
Plaintiffs allege the “denial of prompt and full custody hearing[s] in the context of
transferring custody from one parent to another is widespread throughout the state and country.”
(Id. ¶ 67 (citing Donald C. Hubin, Parental Rights and Due Process, 1 J. L. & Fam. Stud. 123
(1999) (noting the widespread violation of due process in the family law context); B.S. v. Somerset
Cty., 704 F.3d 250, 275 (3d Cir. 2013)).) Plaintiffs allege, while New Jersey may have taken
corrective measures to prevent deprivations of rights when the state is removing children from
both parents, there are no such safeguards when one parent’s rights are affected. (Id. ¶ 74.)
Plaintiffs claim the policies in place in New Jersey custody proceedings place all parents of minor
children “at risk of losing custody at any time without due process.” (Id. ¶ 75.)

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II. LEGAL STANDARDS
A. Motion to Dismiss
Defendants move to dismiss the Amended Complaint pursuant to Rule 12(b)(6).
Defendants also move to dismiss Count III pursuant to Rule 12(b)(1), on the ground Plaintiffs lack
standing to assert an equal protection claim on behalf of indigent parents because they have never
alleged they are indigent. (ECF No. 19.) “Caution is necessary because the standards governing
the two rules differ markedly, as Rule 12(b)(6) provides greater procedural safeguards for plaintiffs
than does Rule 12(b)(1).” Davis v. Wells Fargo, 824 F.3d 333, 348-49 (3d Cir. 2016).
i.

Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at
228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the
complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

7

pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
ii.

Federal Rule of Civil Procedure 12(b)(1)

“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Davis, 824 F.3d at 346. A facial attack “challenges the subject matter jurisdiction
without disputing the facts alleged in the complaint, and it requires the court to ‘consider the
allegations of the complaint as true.’” Id. (citing Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006)). A factual attack, on the other hand, “attacks the factual allegations underlying the
complaint’s assertion of jurisdiction, either through the filing of an answer or ‘otherwise
present[ing] competing facts.’” Id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014)). A “factual challenge allows a court [to] weigh and consider evidence outside
the pleadings.” Id. (citation omitted). Thus, when a factual challenge is made, “no presumptive
truthfulness attaches to [the] plaintiff’s allegations.” Id. (citing Mortensen v. First Fed. Sav. &

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Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Rather, “the plaintiff will have the burden of proof
that jurisdiction does in fact exist,” and the court “is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Id.
Here, Defendants assert a facial attack, arguing Plaintiffs lack standing to assert an equal
protection claim on behalf of indigent parents because they do not allege in the Amended
Complaint that they are indigent. Hassan v. City of New York, 804 F.3d 277, 288-89 (finding a
Rule 12(b)(1) challenge to a plaintiff’s standing to assert an equal protection claim is a facial
attack). The Court, therefore, accepts the allegations in the Amended Complaint as true.
The Third Circuit has “repeatedly cautioned against allowing a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction to be turned into an attack on the merits.” Davis, 824
F.3d at 348-49 (collecting cases). “[D]ismissal for lack of jurisdiction is not appropriate merely
because the legal theory alleged is probably false, but only because the right claimed is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy.’” Id. at 350 (quoting Kulick v. Pocono
Downs Racing Ass’n, Inc., 816 F.2d 895, 899 (3d Cir. 1987)). “In this vein, when a case raises a
disputed factual issue that goes both to the merits and jurisdiction, district courts must ‘demand
less in the way of jurisdictional proof than would be appropriate at a trial stage.’” Id. (citing
Mortensen, 549 F.2d at 892 (holding that dismissal under Rule 12(b)(1) would be “unusual” when
the facts necessary to succeed on the merits are at least in part the same as must be alleged or
proven to withstand jurisdictional attacks)). These cases make clear that “dismissal via a Rule
12(b)(1) factual challenge to standing should be granted sparingly.” Id.

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III. DECISION
A. Fourteenth Amendment Due Process Claim (Count II)
“Section 1983 provides remedies for deprivations of rights established by the Constitution,
including substantive due process under the Fourteenth Amendment.” Chainey v. Street, 523 F.3d
200, 219 (3d Cir. 2008) (citing Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). “To
maintain a substantive due process claim [under the Fourteenth Amendment], [a plaintiff] must
have been deprived of a particular interest that ‘is protected by the substantive due process
clause.’” Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017) (quoting Chainey, 523 F.3d at 219);
see Clayworth v. Luzerne Cty., Pa., 513 F. App’x 134, 136 (3d Cir. 2013). Further, a plaintiff
“must also show that ‘the government’s deprivation of that protected interest shocks the
conscience.’” Steele, 855 F.3d at 502 (quoting Chainey, 523 F.3d at 219)). “[O]nly the most
egregious official conduct” constitutes action that “shocks the conscience.” Chainey, 523 F.3d at
219.
With respect to child custody cases, courts have held a parent “has a constitutionally
protected liberty interest in the custody, care, and management of his child.” Clayworth, 513 F.
App’x at 137 (citing Croft v. Westmoreland Cty. CYS, 103 F.3d 1123, 1125 (3d Cir. 1997)). A
parent’s liberty interest in the custody of his or her children is not absolute and is “limited by the
compelling government interest in the protection of children.” Id. Courts look to the best interests
of the child to determine the reasonableness of defendants’ conduct in child custody cases. Id.
“In custody cases, it is well settled that the court’s primary consideration is the best interests
of the children.” Hand v. Hand, 917 A.2d 269, 270 (N.J. Super. Ct. App. Div. 2007) (citing
Kinsella v. Kinsella, 696 A.2d 556 (N.J. 1997)). “Custody issues are resolved using a best interests
analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c).” Id. at 271. The United States

10

Supreme Court has stated the “best interests of the child” standard is “a proper and feasible
criterion for making the decision as to which of the two parents will be accorded custody.” Reno
v. Flores, 507 U.S. 292, 303-04 (1993). “When [a custody] dispute is between two fit parents, the
best interest of the child standard controls because both parents are presumed to be equally entitled
to custody.” Watkins v. Nelson, 748 A.2d 558, 568 (N.J. 2000). The best interest standard applies
when the custody dispute is between two parents, because “both parents have a fundamental right
to the care and nurturing of their children and neither has a preeminent right over the other.”
Sacharow v. Sacharow, 826 A.2d 710, 721 (N.J. 2003). Parents involved in a custody dispute
“submit[] their dispute to the court” and the state then assumes “the role of mediator by necessity.”
Id. (citations omitted).
Courts distinguish custody disputes between parents from those in which “the State or a
third party seeks to interfere with [a parental] right.” See id. (citing Watkins, 748 A.2d at 558). In
those instances, “only the avoidance of harm to the child or ‘exceptional circumstances’ will justify
an intrusion.” Id. When a third party seeks custody, the presumption in favor of a parent can never
be rebutted “by a simple application of the best interests test.” Watkins, 748 A.2d at 559.
Plaintiffs argue courts should require clear and convincing evidence even in disputes
between two parents, if the court is awarding one of the parents less than equal custody. (ECF No.
15 ¶¶ 359-66.) Plaintiffs argue the Third Circuit “explicitly rejected the reasoning of [the New
Jersey Supreme Court in] Sacharow” by finding “[f]rom the parent’s perspective, there may be
little meaningful difference between instances in which the state removes a child and takes her into
state custody and those in which the state shifts custody from one parent to another.” (ECF No. 20
at 18-19 (citing B.S., 704 F.3d at 272).) However, Plaintiffs’ reliance is misplaced. First, the Third
Circuit never mentioned, much less rejected, Sacharow. See B.S., 704 F.3d 250. Second, B.S. arose

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from the decision of county child welfare officials to remove a child from the custody of an
allegedly abusive mother and place the child with her biological father. Id. at 253. The Third
Circuit ruled the county had violated the mother’s rights to due process when it failed to provide
her a prompt opportunity to be heard after her daughter was removed from her home. Id. at 27273. Plaintiffs argue B.S. stands for the proposition that all parents are entitled to such a hearing.
(ECF No. 20 at 19-20.) But the B.S. court found a hearing was required when “[t]he state has
caused a deprivation and risks having done so wrongly.” 704 F.3d at 272 (emphasis added). This
is different from situations where, as in Plaintiffs’ custody disputes, both parents who seek custody
“submit[] their dispute to the court” and the state assumes “the role of mediator by necessity.”
Sacharow, 826 A.2d at 721.
Plaintiffs also argue the United States Supreme Court has held the termination of parental
rights requires clear and convincing evidence, not merely the best interests standard. 3 (See ECF
No. 20 at 6-8 (citing Troxel v. Granville, 530 U.S. 57 (2000); Santosky v. Kramer, 455 U.S. 745
(1982).) Plaintiffs posit the Court in Santosky held a parent’s rights could not be terminated based
on a “fair preponderance of the evidence” standard, and that courts must apply the “clear and
convincing” standard. 455 U.S. at 768-69. The Troxel Court overturned a state court’s application
of the best interests standard in a dispute between a parent and grandparents seeking visitation.
530 U.S. at 60-61.

3

At oral argument, there was substantial colloquy regarding New Jersey court hearings brought
pursuant to Title 9, N.J.S.A. §§ 9:6-8.21, et seq., which concern abuse or neglect, and hearings
brought pursuant to Title 30, N.J.S.A. §§ 30:4C-12, et seq., which is a guardianship proceeding.
The Court and the parties noted Title 9 and Title 30 hearings can lead to a termination of parental
rights. For that reason, the state provides services, such as counseling or drug treatment, in an
effort to prevent the severe step of a termination of parental rights. A custody hearing between two
parents is not state action and does not demand the procedures that are in place in Title 9 and Title
30 hearings.
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Neither Santosky nor Troxel, however, involved a custody dispute between parents. Courts
apply the heightened clear and convincing standard in disputes between a parent and a third party,
because such cases present the risk of “a unique kind of deprivation” that is “final and irrevocable.”
Stantosky, 455 U.S. at 759. In contrast to permanent terminations of parental rights, custody orders
can be modified on a showing of “changed circumstances.” Hand, 917 A.2d at 271; see also
Kirernan v. Kirernan, 809 A.2d 199, 202 (N.J. Super. Ct. App. Div. 2002). While Plaintiffs have
not been awarded the share of custody they seek, their claims demonstrate they have had some
parenting time restored at different points in their custody disputes. (ECF No. 15 ¶¶ 15, 51, 60.)
The Court does not doubt Plaintiffs’ sincerity regarding the pain they have experienced as a result
of the limitations on their parenting time. These limitations, however, are not a “final and
irrevocable” deprivation of rights that would require courts to apply a clear and convincing
evidence standard. See Stantosky, 455 U.S. at 759.
Plaintiffs have not cited any controlling precedent to support their argument that courts
should apply the same standard of review in custody disputes between parents that is applied when
a third party seeks to interfere with a parent’s rights. Plaintiffs’ argument runs counter to United
States Supreme Court and New Jersey Supreme Court precedent. 4
For the foregoing reasons, Plaintiffs claim for a violation of their due process rights under
the Fourteenth Amendment (Count II) is DISMISSED.

4

A recent New Jersey Supreme Court decision demonstrates the centrality of the best interests
standard in custody disputes. Bisbing v. Bisbing, No. 077533, 2017 WL 3392717, at *14 (N.J. Aug.
8, 2017). The Court reversed its own precedent and found the best interests standard was
appropriate to resolve a non-custodial parent’s challenge to a custodial parent’s relocation of his
or her residence. Id.; see also Emma v. Evans, 71 A.3d 862 (N.J. 2013) (finding the best interests
standard is appropriate for settling parents’ dispute over renaming a child).

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B. Equal Protection Claim (Count III)
Under the Equal Protection Clause of the Fourteenth Amendment, all similarly situated
individuals must be treated alike. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). To state a claim under the Equal Protection Clause, a plaintiff must allege: (1) he or she is
a member of a protected class; (2) he or she was treated differently from similarly situated
individuals; and (3) the disparate treatment was based on membership in the protected class.
Kasper v. Cty. of Bucks, 514 F. App’x 210, 214 (3d Cir. 2013) (citation omitted). The Equal
Protection Clause applies to gender-based classifications. See Sessions v. Morales-Santana, 137
S. Ct. 1678 (2017); U.S. v. Virginia, 518 U.S. 515, 531 (1996). A policy that confers benefits to
one gender at the expense of another must be supported by an “exceedingly persuasive
justification.” Id. at 1683 (citing Virginia, 518 U.S. at 531).
Notwithstanding the Equal Protection Clause, states have “a wide scope of discretion in
enacting laws which affect some groups of citizens differently than others.” McGowan v.
Maryland, 366 U.S. 420, 425 (1961). Therefore, “a statutory classification that neither proceeds
along suspect lines [such as race or gender] nor infringes on fundamental constitutional rights must
be upheld against an equal protection challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.” Fed. Commc’ns Commm. v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993).
1.

Gender Discrimination

Plaintiffs claim New Jersey courts discriminate against fathers in custody proceedings on
the basis of gender in violation of their right to equal protection. (ECF No. 15 ¶¶ 369-81.) In
support of their argument, Plaintiffs cite a study of two New Jersey counties, using data from 1985
to 1987, which “showed that although joint custody was sought most of the time, the mother was

14

routinely awarded sole custody.” (ECF No. 15 ¶ 372 (citing Diane Shrier, M.D. et al., Child
Custody Arrangements: A Study of Two New Jersey Counties, J. of Psychiatry and L., Spring
1989).) The study has no bearing on Plaintiffs’ claims, though, because “[i]n 1990, the [New
Jersey] Legislature substantially amended the laws governing custody, finding that when a
marriage dissolves the public policy of [the] State is to assure that minor children are in frequent
contact with, and cared for, by the non-custodial, as well as the custodial, parent.” Gubernat v.
Deremer, 657 A.2d 856, 866 (N.J. 1995). “The Legislature clearly has ended gender-based
differences in marital and parental rights, whether rooted in law or custom, and instead determined
that parental disputes about children should be resolved in accordance with each child’s best
interests.” Id.
Plaintiffs argue New Jersey has not rejected gender-based policies despite the actions of
the Legislature, because “New Jersey family court judges continue to apply to so-called Tender
Years Doctrine which discriminates against [f]athers.” (ECF No. 15 ¶ 374.) Plaintiffs support this
claim in two ways. First, they cite a trial judge’s statement—six months after Gubernat—that In
re Baby M., 537 A.2d 1227 (1988), stood for the principle “that the ‘tender years’ doctrine is alive
and well in New Jersey.” (ECF No. 20 at 35-36 (citing Mustilli v. Mustilli, 671 A.2d 650, 651 (N.J.
Super. Ch. Div. 1995)).) Second, Plaintiffs cite Superior Court Judge Severiano Lisboa’s statement
on October 26, 2012, that “there’s a presumption [] a child of tender years should only go with the
mother.” (ECF No. 15 ¶ 374.)
Plaintiffs’ argument is flawed for two reasons. First, the tender years doctrine no longer
applies in New Jersey. The court in In re Baby M. did not affirm the use of the tender years doctrine,
but instead held a court could consider the bond that arises between a mother and a child after the
mother has had custody for the first several months of the child’s life. 537 A.2d at 1256 n.17.

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Second, even if the State Court still applied the tender years doctrine as a general matter, it has no
relevance to Plaintiffs’ claims. Neither Hagberg nor Shaikh alleges the tender years doctrine was
invoked in his case. Neither was a party in Mustilli or the action in which Judge Lisboa invoked
the tender years doctrine. Plaintiffs’ allegations of gender discrimination, supported by references
to two statements by trial judges made seventeen years apart, do not meet the plausibility standard
required to survive a motion to dismiss. See Iqbal, 556 U.S. at 678 (holding a plaintiff must offer
“factual enhancements” and not just conclusory statements or a recitation of the elements of a
cause of action) (citing Twombly, 550 U.S. at 555, 557).
Further, New Jersey’s policy for awarding custody does not make a gender-based
classification and therefore is subject to rational basis review. See Gubernat, 657 A.2d at 866.
Courts apply heightened scrutiny to gender-based classifications when those classifications are
explicit. See Morales-Santana, 137 S. Ct. at 1678 (applying heightened scrutiny to policy that
conferred citizenship on children based on five years of continuous residency by fathers but only
one year of residency by mothers); Virginia, 518 U.S. at 531 (holding that state military college’s
policy of excluding women was subject to heightened scrutiny). As New Jersey’s policy does not
“proceed[] along suspect lines . . . [it] must be upheld against an equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” See Beach Commc’ns, Inc., 508 U.S. at 313. Plaintiffs have not pleaded there is no
rational basis for New Jersey’s child custody policy, Defendants’ Motion to Dismiss Plaintiffs’
equal protection claim is GRANTED.
2.

Standing as Indigent Parents

Plaintiffs also allege New Jersey policy violates their right to equal protection, because
“indigent parents accused of abuse or neglect of their children have a constitutional right to

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counsel,” while “New Jersey does not provide the same right to counsel for the indigent in the
context of a divorce proceeding or other inter-parent dispute that results in loss of custody by a
parent.” (ECF No. 15 ¶¶ 375-76.) Defendants move to dismiss the claim pursuant to Rule 12(b)(1),
arguing Plaintiffs lack Article III standing to assert this claim because “neither Plaintiff claims that
a court has found them to be indigent, that they have requested the appointment of counsel, or that
a request for such counsel has been denied.” (ECF No. 19-1 at 43.) The Court agrees.
Article III “standing consists of three elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish
standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Id. “The plaintiff, as the party invoking federal jurisdiction, bears the burden of
establishing these elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). “It is
the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party
to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” Warth
v. Seldin, 422 U.S. 490, 518 (1975). Because Plaintiffs have alleged no facts to support a finding
either is indigent, they have not alleged they have suffered an injury in fact related to Defendants’
alleged discrimination against indigent parents. Therefore, Plaintiffs lack standing to assert the
claim on behalf of indigent parents.
As Plaintiffs have not adequately established New Jersey discriminates against fathers
based on their gender, and because they lack standing to assert a claim on behalf of indigent
parents, Plaintiffs’ claim for a violation of their right to equal protection under the Fourteenth
Amendment (Count III) is DISMISSED.

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C. Right to a Plenary Hearing (Count I)
“New Jersey courts’ policy on plenary hearings in custody disputes . . . has not been
codified by statute but instead developed in the state case law.” Allen, 861 F.3d at 437. “[A] plenary
hearing is not required in every contested motion in New Jersey state court; a trial judge has
discretion to decide such a motion without a hearing.” Id. (citing Shaw v. Shaw, 351 A.2d 374, 376
(N.J. Super. Ct. App. Div. 1976)). A plenary hearing is required only when “the affidavits show
there is a genuine issue as to a material fact, and [when] the trial judge determines that a plenary
hearing would be helpful in deciding such factual issues.” Id. (quoting Shaw, 351 A.2d at 376).
The New Jersey Supreme Court has long recognized the trial court in family matters is entitled to
great deference because “it has a ‘feel of the case’ that can never be realized by a review of the
cold record.” N.J. Div. of Youth & Family Servs. v. E.P., 952 A.2d 436, 445 (N.J. 2008) (citing
N.J. Div. of Youth & Family Servs. v. M.M., 914 A.2d 1265 (N.J. 2007)); see also N.J. Div. of
Youth & Family Servs. v. M.C. III, 990 A.2d 1097 (N.J. 2010). “Because of the family courts’
special jurisdiction and expertise in family matters, appellate courts should accord deference to
family court factfinding.” Cesare v. Cesare, 713 A.2d 390, 399 (N.J. 1998).
Plaintiffs allege they suffered a violation of their due process rights under the Fourteenth
Amendment because the New Jersey court modified their custody arrangements without a plenary
hearing. (ECF No. 15 ¶¶ 343-52.) Plaintiffs make the same argument in support of this claim as in
support of their claim that the best interests standard is unconstitutional, i.e., the Third Circuit has
abrogated the distinction between parent versus parent custody disputes and parent versus third
party custody disputes. (ECF No. 20 at 29-30 (citing B.S., 704 F.3d at 272-75).) However, as
discussed above, B.S. does not represent the change to custodial law that Plaintiffs claim it
represents.

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Further, Plaintiffs did not specify, either in their brief or at oral argument, whether their
challenge to New Jersey courts’ policy on plenary hearings is an “as applied” challenge or a
“facial” challenge. A facial challenge “tests a law’s constitutionality based on its text alone and
does not consider the facts or circumstances of a particular case.” United States v. Marcavage, 609
F.3d 264, 273 (3d Cir. 2010). Facial challenges are “disfavored” outside of First Amendment
claims. United States v. Mitchell, 652 F.3d 387, 406 (3d Cir. 2011) (en banc). A facial challenge
is “the most difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the [challenged policy] would be valid.” U.S. v. Salerno,
481 U.S. 739, 745 (1987).
Here, to mount a successful facial challenge Plaintiffs would have to show a plenary
hearing would be required in every custody dispute in New Jersey courts. This is not the case. See
Pfeiffer v. Ilson, 722 A.2d 966, 967 (N.J. Super. Ct. App. Div. 1999) (finding “a plenary hearing
is not necessary in every case”). “It is only where the affidavits show that there is a genuine issue
as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in
deciding such factual issues, that a plenary hearing is required.” Shaw, 351 A.2d at 376. “[W]here
the need for a plenary hearing is not so obvious, the threshold issue is whether the movant has
made a prima facie showing that a plenary hearing is necessary.” Hand, 917 A.2d at 271. “No
reported case [in New Jersey] holds that a plenary hearing is inexorably required to resolve
contested applications” concerning the welfare of a child. Barblock v. Barblock, 890 A.2d 1005,
1010 (N.J. Super. Ct. App. Div. 2006). Plaintiffs’ facial challenge therefore fails.
To the extent Plaintiffs seek to challenge New Jersey courts’ policy on plenary hearings as
applied to their respective cases, that claim also fails. Plaintiffs seek declaratory relief that would
“provide that a plenary hearing [be held] within ten days to any parent who has their right to the

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care[,] custody[,] and control of their children reduced through State action.” (ECF No. 15 ¶ 355.)
Such relief would run afoul of the United States Supreme Court’s precedent in O’Shea v. Littleton,
414 U.S. 488, 501 (1974). In O’Shea, the plaintiffs were nineteen civil rights activists who sought
to enjoin local law enforcement officials and two judges from discriminating against them based
on their race. 414 U.S. at 490-91. The plaintiffs alleged the defendants imposed harsh and arbitrary
punishments on plaintiffs in an effort to discourage their activism. Id. at 492.
The O’Shea Court denied injunctive relief, though, finding such an injunction would be
“aimed at controlling or preventing the occurrence of specific events that might take place in the
course of future state . . . trials.” Id. at 499-500. To enforce the injunction, a federal court would
have to undertake “nothing less than an ongoing federal audit of state . . . proceedings” and “sit in
constant day-to-day supervision of these [state] judicial officers.” Id. at 500-01. Finally, the Court
determined such federal court oversight of a state court “is antipathetic to established principles of
comity.” Id. at 501.
Defendants argue O’Shea compels this Court to dismiss Plaintiffs’ claim that the lack of a
plenary hearing violates their right to due process. The Court agrees. As in O’Shea, the relief
Plaintiffs seek would require the Court to engage in “an ongoing federal audit of state . . .
proceedings.” See id. at 500.
For the foregoing reasons, Plaintiffs’ claim that the lack of a plenary hearing violates their
right to due process under the Fourteenth Amendment (Count I) is DISMISSED.
D. Claim Pursuant to the Declaratory Judgment Act (Count IV)
Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, Plaintiffs seek a “declaratory
judgment that fundamental rights, including parental rights, may not be taken away without due
process merely because they are in family court, and the Court claims to act in the ‘best interests’

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of children.” (ECF No. 15 ¶ 385.) As the Court has dismissed each of Plaintiffs’ other claims, it
declines jurisdiction over the remaining claim for declaratory judgment. See Weaver v. Wilcox,
650 F.2d 22, 25 (3d Cir. 1981) (“[T]he [Declaratory Judgment] Act empowers a federal court to
grant the remedy only when there is already an actual controversy, based on independent
jurisdictional grounds, before the court.”).
Therefore, Plaintiffs’ claim for a declaratory judgment (Count IV) is DISMISSED.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss (ECF No. 19) is
GRANTED and Plaintiffs’ claims are DISMISSED. An appropriate Order will follow.

Date: September 26, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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