Fathers Sue New Jersey Family Court Judges Claiming Best Interests of Child Standard Violates Rights

Monday 4 May 2015 @ 12.44 p.m. | Legal Research

A would-be class action lawsuit filed by six fathers claims New Jersey family court judges are unconstitutionally depriving plaintiffs of child custody by using a “best interest of the child” standard.

Background to the American Case

In Edelglass v. DeBello, first filed in February 2014 and amended on 23 January 2015, six plaintiffs say they lost rights to custody or visitation of their children after judges gave them short notice of their hearing, or no hearing or an ex parte hearing. The suit claims such violations of due process rights in family courts are routine and amount to a violation of federal civil rights law.

Some of the plaintiffs claim their due process rights were violated after their children's mothers accused them of domestic violence or child abuse. The fathers seek no damages but are asking for injunctive and declaratory relief against the five judges named in their suit—Lawrence DeBello and Anthony Massi of Mercer County, N.J., John Call Jr. of Burlington County, N.J., Nancy Sivilli of Essex County, N.J., and Maureen Sogluizzo of Hudson County, N.J.

Paul Clark, the Jersey City, N.J., lawyer representing the plaintiffs said:

"We're saying there is a widespread policy and practice of the family courts of New Jersey to deprive parents of the care, custody and control of their children without any hearing whatsoever and sometimes without the parent even being present."

Cary Cheifetz of Ceconi & Cheifetz in Summit, N.J., a past president of the New Jersey Chapter of the American Academy of Matrimonial Lawyers, disagreed on the best interest of the child standard:

"The litigants think they have a vested right to parental access, as if we're dealing with property. Children are not property...It's been settled law as long as I've been practicing that you look at the best interest standard."

What is the Best Interests of the Child - the Australian View?

When a court is making a parenting order, the Family Law Act 1975 (Cth) (The Act) requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to also use this principle when making parenting plans. The Act makes clear (in Section 61DA) that:

both parents are responsible for the care and welfare of their children until the children reach 18, and
arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:

Primary considerations:

the benefit to children of having a meaningful relationship with both parents;
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
The Court is required to give greater weight to the consideration of the need to protect children from harm.

Additional considerations:

the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding;
the child’s relationship with each parent and other people, including grandparents and other relatives;
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives;
the practical difficulty and expense of a child spending time with and communicating with a parent;
each parent’s ability (and that of any other person) to provide for the child’s needs;
the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right;
the attitude of each parent to the child and to the responsibilities of parenthood;
any family violence involving the child or a member of the child’s family;
any family violence order that applies to the child or a member of the child’s family, if:
– the order is a final order, or
– the making of the order was contested by a person;
whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
any other fact or circumstance that the court thinks is relevant.

A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

taken the opportunity to:
– participate in decision-making about major long-term issues about the child;
– spend time with the child;
communicate with the child, and has:
– met their obligations to maintain the child, and
– facilitated (or not) the other parent’s involvement in these aspects of the child’s life.

Is there a Similar Problem with the Australian Test?

The biggest area of concern identified by the studies from the University of Sydney and the University of South Australia listed below is in relation to domestic violence:

"The exercise of powerful social norms marginalised the issue of father violence and its impact on the children and defended violent men by emphasising the role of fathers as being essential to children’s post-separation wellbeing. The fundamental issues were not the emotional, physical and psychological safety of the children, nor the children’s wishes for no father- child contact, but the fathers’ rights in relation to their children, and the mothers’ responsibilities to facilitate those rights."

However, with no constitutional basis for appeal on parental rights, unlike the United States of America, it remains to be seen whether the introduced amendments in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (No. 189 of 2011) (Cth) have rectified this issue.

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