A federal judge in Newark has dismissed a suit by three divorced fathers who claim that case law, court rules and statutes concerning child custody in New Jersey fail to provide sufficient protection of their rights in family court proceedings.

The state court judges who are named as defendants in the suit are not proper defendants, and some of the constitutional claims made in the suit are duplicative of claims raised in previous lawsuits, U.S. District Judge Kevin McNulty said in his decision dismissing the suit. Furthermore, the relief being sought, including a request for an injunction against “refusing to provide parents with adequate notice and a meaningful hearing at a meaningful time following the removal of children from their homes” is vague and unworkable, McNulty ruled.

The individual plaintiffs—Surender Malhan, Elvin Serrano and Zia Shaikh—have lost custody of their children in family court proceedings in Superior Court of New Jersey, Family Division. A group called Family Civil Liberties Union, whose website states that “Family court is one of the greatest frauds ever perpetrated on the American people,” is also a plaintiff in the case.

The suit names as defendants Attorney General Gurbir Grewal, as well as three family court judges: David Katz, Donald Kessler and Marcella Matos Wilson, all of Essex County. Also named as a defendant was the state Division of Child Protection and Permanency.

Malhan's allegations in the lawsuit stem from a dispute with his former wife over custody of their two children, which has been ongoing since 2011. At the time the suit was filed in 2018, he was not allowed to have unsupervised visitation with his children, and was permitted only one hour of supervised parenting time per week. Malhan claims he was not allowed to have an attorney present when the state Department of Child Protection and Permanency evaluated him. He also asserts that the family court selectively evaluated inadmissible evidence in his custody case and ignored the evidence he sought to present.

Serrano divorced in 2008 and has partial custody of his daughter, but has been seeking full custody since 2017. Shaikh, who filed for divorce in 2008, has been battling with his former wife since 2014 to obtain full custody of their three children. He claims the family court did not notify him or his attorney of certain proceedings in the case.

The plaintiffs claim due process violations of the Fourteenth Amendment based on denial or limitation of custody without a meaningful hearing. They seek declaratory judgments that the lack of a meaningful hearing violates due process, that not allowing parents from having counsel present during evaluative interviews violates due process and that parents in custody disputes have a due process right to make audio or video recordings of proceedings or interactions with their children, social workers and mental health professionals.

The state defendants sought to dismiss based on the Rooker-Feldman doctrine and Younger abstention doctrine, but McNulty denied those claims. Under Rooker-Feldman, parties who lose in state court cannot seek federal court review of adverse rulings. McNulty said that doctrine did not apply because the plaintiffs do not directly challenge the state court rulings, but instead the policies underlying those decisions.

The judge also said the Younger abstention doctrine, which requires dismissal of certain federal claims that interfere with pending state court proceedings, does not apply. The U.S. Supreme Court has ruled that the prospect of interference with state court proceedings counsels against federal relief in criminal prosecutions, civil enforcement proceedings and civil proceedings involving orders in furtherance of state court's ability to perform judicial functions. Since none of those conditions apply in the present case, Younger abstention is not appropriate, McNulty said.

But McNulty agreed with the state that the three judges named as defendants were acting in an adjudicative capacity and therefore not amenable to suit in a federal civil rights claim. When sued under §1983, courts have ruled that judges who are sued in their judicial capacity as neutral adjudicators of disputes are not proper defendants, McNulty said.

McNulty also found that claims by Malhan and Shaikh were precluded under the doctrine of res judicata because they have brought similar claims in previous suits.

“Plaintiffs' constitutional claims do not become new for purposes of claim preclusion merely because they allege subsequent instances of the supposed constitutional violations that was initially litigated,” McNulty wrote.

McNulty also agreed with the state's claim that the relief sought by the plaintiffs is unworkable due to vagueness. He cited the plaintiffs' request that the court permanently enjoin the defendants from “refusing to provide parents with adequate notice and a meaningful hearing at a meaningful time following the removal of children from their homes by state officials in a manner consistent with the Due Process Clause.”

The judicial defendants are already obligated by New Jersey law to abide by Due Process Clause requirements, so the plaintiffs' demand would merely require them to do what they are already required to do, McNulty said. To permit interruption of state proceedings to adjudicate assertions of noncompliance with the order would be an “impermissible ongoing federal audit” of state proceedings requiring federal judges to sit in day-to-day supervision of state judges, he said.

Jersey City attorney Paul Clark said he disagrees with McNulty's rulings barring claims for more recent examples of the same conduct he complained of in past cases. Clark also rejects McNulty's finding that some of the relief sought is unworkable.

“The judge has not addressed the merits of whether any of these have been denied due process. Almost every day, I get calls from parents who tell me, please help me, I have not seen my children in one year, two years, five years. I have hundreds of parents lining up to file suit in federal court. It's going to clog up the system until they fix it,” he said.