                                                    NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 17-3290



KARL HAGBERG, for himself and as parent of E.H., A.H. and C.H.;
  ZIA SHAIKH, for himself and as parent of M.S., S.S., and H.S.

                               v.

  STATE OF NEW JERSEY; GOVERNOR OF NEW JERSEY;
ATTORNEY GENERAL NEW JERSEY; MICHELLE M. SMITH;
                 STUART RABNER


                          Zia Shaikh,
                                   Appellant



         On Appeal from the United States District Court
                   for the District of New Jersey
               (District Court No.: 3:16-cv-01189)
          District Judge: Honorable Brian R. Martinotti



          Submitted under Third Circuit L.A.R. 34.1(a)
                       on July 13, 2018


   Before: SHWARTZ, ROTH and RENDELL, Circuit Judges

                (Opinion filed: October 16, 2018)
                                       O P I N I O N*


RENDELL, Circuit Judge:

       This appeal arises from the District Court’s grant of a motion to dismiss Appellant

Zia Shaikh’s amended complaint with prejudice.1 Shaikh filed an amended complaint

against the State of New Jersey, the Governor of New Jersey, the Attorney General of

New Jersey, the Clerk of the New Jersey Superior Court, and the Chief Justice of the

New Jersey Supreme Court (Collectively, the “State”). Shaikh challenged the

constitutionality of the New Jersey custody dispute framework by arguing that it limits

his fundamental right to care for and nurture his children and restricts his ability to be

heard at a plenary hearing.2

       The State moved to dismiss the amended complaint pursuant to Fed. R. Civ. P.

12(b)(1) and (6). The District Court granted the State’s motion and dismissed Shaikh’s

amended complaint with prejudice. For the following reasons, we will affirm.




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  This case is listed as Hagberg v. New Jersey, but Karl Hagberg, who was involved in the
initial lawsuit, failed to make a timely appeal pursuant to Fed. R. App. P. 4(a)(1)(A) and
(a)(3). Hagberg also did not appeal the District Court’s January 3, 2018 order denying his
motion for an extension of time to appeal. Thus, we cannot and do not consider
Hagberg’s claims on appeal.
2
  In New Jersey family courts, a plenary hearing is held under certain circumstances
when a judge is considering a motion by one of the parties.
                                              2
                                  I. BACKGROUND

       A. Facts

       In October of 2013, Appellant Zia Shaikh filed for divorce from Laura

Germandig-Shaikh (“Germandig”). Together, Shaikh and Germandig had three children.

On April 2, 2014, Germandig moved to evict Shaikh from the home and obtain full

custody of their children.

       On April 23, 2014, Germandig’s counsel appeared in New Jersey family court for

a case management conference, but Shaikh had not been notified of the conference and

his counsel did not attend. During this conference, Germandig’s counsel applied for an

order to show cause for full custody of the children, and submitted an affidavit accusing

Shaikh of verbal harassment and physical abuse of one of his daughters. The family court

issued the order, which granted Germandig sole legal and physical custody, and

prohibited Shaikh from entering the home. Shaikh alleges that the family court order was

granted based on Germandig’s concern that he “may try to take the children.”3 A. 33-34.

       On June 13, 2014, the New Jersey family court heard oral argument on

Germandig’s motion. Shaikh appeared pro se and denied the allegations of child abuse

and Germandig’s assertion that he was a Pakistani national planning to flee the country.

At this hearing, the family court: (1) awarded Germandig full physical custody; (2)

3
  Shaikh claims that the family court terminated his custody in large part because Shaikh
was born in Pakistan (even though he is a naturalized United States citizen who has been
living in the U.S. for 26 years) and claims that the court accepted the argument that
because of his national origin, Shaikh posed a risk of abducting his children and taking
them to a foreign country.
                                            3
suspended Shaikh’s parenting time with his daughter indefinitely; (3) allowed Shaikh two

short visits each week with his other two children, but no overnight visits; (4) stated

Shaikh and Germandig would mediate the issue of custody; (5) ruled that Shaikh could

request a plenary hearing if no custody agreement was reached; (6) ordered Shaikh to

attend anger management; and (7) ordered Shaikh to turn over a variety of documents

including his passport. Shaikh failed to comply with these directives, and in August of

2014, the family court suspended all of his parenting time.

       On December 12, 2014, the family court denied Shaikh’s request for joint legal

custody because he “had not shown changed circumstances.” A. 35. About a year later, in

December of 2015, the family court denied Shaikh parenting time with one child but

awarded him nine-and-a-half hours of supervised parenting time per week with his other

two children. In opposition, Shaikh claims these orders were entered “without a plenary

hearing and without any finding of abuse or neglect.” Id.

       B. Procedural History

       Shaikh filed a four-count complaint in the United States District Court for the

District of New Jersey against the Honorable Marlene Lynch Ford, the Superior Court

Judge presiding over his custody dispute. Judge Ford moved to dismiss the case. Shaikh

opposed Judge Ford’s motion to dismiss and cross-moved to file an amended complaint.

The District Court granted Judge Ford’s motion to dismiss and granted Shaikh’s cross-

motion to amend as long as the claims asserted against Defendant Judge Ford were

omitted.



                                              4
         Following the District Court’s order, Shaikh filed an amended complaint against

the State. In the complaint, Shaikh stated the following four claims: (1) that he was

deprived his parental rights without a hearing; (2) that the New Jersey family court

custody dispute framework violates the U.S. Constitution by resolving custody disputes

between parents using the “best interests of the child” standard instead of the

“exceptional circumstances” standard, and also by using a “preponderance of the

evidence” standard of proof instead of a “clear and convincing evidence” standard; (3)

that the State violated the Equal Protection Clause in custody disputes between parents by

using the “best interests” standard instead of the “exceptional circumstances” standard by

favoring mothers over fathers, by not providing counsel to indigent parents, and by not

attempting to reunite families; and (4) that Shaikh was entitled to a declaratory judgment

because “fundamental rights, including parental rights, may not be taken away without

due process.” A. 70-79. The State moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

and (6). The District Court granted the State’s motion and dismissed Shaikh’s amended

complaint with prejudice. This appeal followed.

                  II. JURISDICTION AND STANDARD OF REVIEW

         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the grant of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir.

2014). We must accept all pled allegations as true and draw all reasonable inferences in

favor of the plaintiff. McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir.

2009).

                                             5
                                    III. DISCUSSION

       Shaikh raises three issues on appeal: (1) whether the New Jersey family court’s

use of the “best interests of the child” standard in deciding custody disputes between two

parents was proper; (2) whether the standard of proof used in custody disputes between

parents should be “preponderance of the evidence” rather than by “clear and convincing

evidence”; and (3) whether family court litigants should be entitled to plenary hearings as

a matter of due process, so that the court should be enjoined from denying such hearings

in the future.4

     A. The Best Interests Standard is the Correct Standard for Resolving
Custody Disputes Between Parents.

       The District Court stated that there is a fundamental difference between a custody

dispute involving two parents and a custody dispute involving one parent and the State.

For example, when a custody dispute is between two parents, each is “presumed to be

equally entitled to custody.” Watkins v. Nelson, 748 A.2d 558, 568 (N.J. 2000). This is

because each parent has a fundamental right to care for and nurture their children.

Sacharow v. Sacharow, 826 A2d 710, 721 (N.J. 2003); see also Troxel v. Granville, 530

U.S. 57, 69 (2000) (noting “the traditional presumption that a fit parent will act in the

best interest of his or her child.”). In contrast, custody disputes involving one parent and

the State differ because in those situations, the parent is the only party presumed to be

entitled to custody. Watkins, 748 A.2d at 568. In those situations, a court cannot deprive a

parent of his or her fundamental right to care for and nurture their child without showing

4
 Shaikh did not appeal the District Court’s order, pursuant to Federal Rule of Civil
Procedure 12(b)(1), dismissing his equal protection claim for a lack of standing.
                                              6
proof of gross misconduct, abandonment, unfitness, or the existence of exceptional

circumstances. Id. at 559. Thus, in a custody dispute, the parties involved will dictate the

standard a family court must use to determine which party will be awarded custody. Id. at

568.

       Here, the custody dispute was between two parents. Thus, each has a fundamental

right to care for and nurture their children and neither’s right is greater than the other’s.

Sacharow, 826 A.2d at 721. In these situations, the best interests standard is the correct

standard a family court judge should use to make a reasonable decision as to which of the

parents will be awarded custody.5 Reno v. Flores, 507 U.S. 292, 303-04 (1993). The

District Court correctly concluded that this standard does not limit a parent’s fundamental

right to parenthood because, “by submitting their [custody] dispute to the court, it is the

parties themselves who essentially seek the impairment of each other’s rights.”

Sacharow, 826 A.2d at 721. Thus, using the best interests standard allows each parent the

opportunity to rebut the other’s presumption that entitles them to custody of the children.

See Watkins, 748 A.2d at 568.

       Since this dispute was between two parents, the District Court correctly upheld the

family court’s use of the best interests of the child standard when determining which

parent would gain custody of the children.


5
  The best interests standard allows a family court judge to weigh a variety of factors
when making a custody determination between two parents. Some of those factors
include: the child’s needs, the parents’ ability to cooperate in matters relating to the child,
the interaction and relationship between the child and his or her parents and siblings, the
history of domestic violence, the fitness of the parents, the parents’ employment
responsibilities, and the stability of the home environment. N.J. Stat. Ann. § 9:2-4(c).
                                               7
     B. Preponderance of the Evidence is the Proper Standard of Proof in
Custody Disputes Between Parents.

       Shaikh argues that the family court erred by using a preponderance of the evidence

standard of proof to resolve his custody dispute rather than a clear and convincing

evidence standard. Shaikh argues that the family court 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.

       The U.S. Supreme Court has determined that a State cannot terminate parental

rights without “clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745

(1982). However, in Santosky the custody dispute was between one parent and a third

party, not two parents. Id. In such situations, courts should apply the heightened clear and

convincing standard. This standard applies in order to protect individuals who are

engaged in government-initiated proceedings, in which the outcome could threaten the

individual involved with a “significant deprivation of liberty or ‘stigma.’” Id. at 756.

Courts follow this heightened standard because of the vast resources afforded by the State

and the potential result of a parent’s complete and irrevocable loss of parental rights. Id.

at 761-63 (citation omitted).

       In contrast, the result of a custody dispute between two parents does not result in

the complete and irrevocable loss of parental rights or involve a vast disparity in litigation

resources between the parties. Hand v. Hand, 917 A.2d 269, 271 (N.J. Super. Ct. App.

Div. 2007). Thus, an order establishing a custody arrangement between parents is




                                              8
inherently temporary, since it can always be modified on a showing of changed

circumstances. Id.

       Shaikh alleges that the clear and convincing evidence standard is appropriate

because there is no difference between a custody dispute involving two parents and one

involving one parent and the State. However, as the District Court correctly stated,

Shaikh “failed to cite any controlling precedent to support [his] 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.” A. 16. He also fails to

cite any such cases before us. The District Court concluded that the limitations placed on

Shaikh’s custody were not “final and irrevocable” deprivations of rights that would

require the Court to apply a clear and convincing evidence standard. Santosky, 455 U.S.

at 759. In addition, the preponderance of the evidence standard is appropriate when both

parties have an equal risk of error, which is the case in custody disputes between two

parents. Id. at 755.

       Therefore, the District Court was correct to apply the preponderance of the

evidence standard over the clear and convincing standard because Shaikh’s custody

dispute was between two parents.

      C. Family Court Litigants Are Not Entitled to a Plenary Hearing as a Matter
of Course and Cannot Enjoin Future Denials of Such Hearings.

       Shaikh challenges the constitutionality of New Jersey’s custody dispute

framework under the Due Process Clause of the Fourteenth Amendment. He argues that

he suffered a violation of his due process rights under the Fourteenth Amendment


                                              9
because the New Jersey family court has the ability to modify his custody arrangement

without holding a plenary hearing.

        First, Shaikh brings a facial challenge. A facial challenge “tests a law’s

constitutionality based on its text alone and does not consider the fact or circumstances of

a particular case.” U.S. v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). Here, the New

Jersey law provides family court litigants with the opportunity for a plenary hearing on

custody issues at various stages of litigation. See, e.g., N.J. Ct. R. 4:67-5; N.J. Ct R. 1:6-

2(f); N.J. Ct. R. 5:8-6. Its Court rules state that before a plenary hearing will be held, a

party must make a prima facie showing that there is a genuine issue of material fact that

would warrant a hearing; otherwise, judges can decide the matter without a hearing. See

Hand, 917 A.2d at 271.

        In order for Shaikh to meet the heavy burden associated with facial challenges he

“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). Essentially, Shaikh argues

that in every single custody dispute, due process requires a plenary hearing. That is not

the case. See Pfeiffer v. Ilson, 722 A.2d 966, 967 (N.J. Super. Ct. App. Div. 1999)

(finding that “a plenary hearing is not necessary in every case”). For these reasons, we

affirm the District Court’s decision denying Shaikh’s facial challenge of the New Jersey

custody dispute framework.

       Additionally, Shaikh asks for injunctive and declaratory relief seeking to prevent

the family court from denying his plenary hearing requests in future custody proceedings.

This would require the federal District Court to exert control over the New Jersey family

                                              10
court’s day-to-day operations. O’Shea v. Littleton, 414 U.S. 488, 500-01 (1974). Here,

the District Court concluded that it is not the job of the federal court to sit in constant

supervision of the New Jersey family court, which would essentially “transform federal

courts into family courts.”Brittain v. Hansen, 451 F.3d 982, 995 (9th Cir. 2006). Thus,

the District Court was correct to deny Shaikh injunctive and declaratory relief.

                                    IV. CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s order.




                                              11
