in David v. Kaulukukui, published June 27, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer's motion to dismiss a 42 U.S.C. section 1983 lawsuit. According to the complaint, a custody order awarded the plaintiff full custody of her daughter, denied the father visitation rights, and ordered that the father stay away and have no contact with the plaintiff. The plaintiff and daughter lived on the Island of Hawaii, while the father lived on Kauai. The plaintiff and child visited family on Kauai. During the visit, the father had contact with the plaintiff and daughter over the plaintiff's protests. The plaintiff then took the daughter to the father's workplace and demanded he apologize to the daughter. When the plaintiff yelled at, pushed, and taunted the father, the police arrested her. She posted bail, and she and the daughter returned to the island of Hawaii. According to the plaintiff's complaint, after the altercation the defendant officer met with the father at the Kauai county police department. The officer prepared and filed a petition for a protective order in family court on the father's behalf seeking to prohibit the mother from contacting any of the father's family members, including the daughter. The petition did not mention the custody order. The family court granted the petition and issued a TRO prohibiting the mother from having any contact with her daughter. Two weeks later, a child welfare services official visited the mother's home and rated the mother a low to moderate risk score. During the visit, the mother informed the CWS worker of the custody order. A few days later, CWS officials conducted a "grab and go," taking the daughter from her school without a court order or prior notice to the mother, and put her in the father's custody on Kauai. When the plaintiff attempted to report to the Kauai county police department that the daughter had been "kidnapped and was in the custody of an allegedly abusive, non-custodial parent, the defendant officer allegedly worked with other defendants to prevent the allegations from being investigated or a police report from being filed. Eleven days later, the family court held a hearing on the TRO, learned of the custody order, and dismissed the prohibition against the plaintiff having contact with her daughter. The daughter was returned home 21 days after being grabbed from her school. The district court denied the defendant officer's motion for dismissal based on qualified immunity, on the ground that the operative complaint stated a plausible claim for violation of a clearly established right to familial association.
The court of appeals agreed. A right to familial association under the 14th Amendment (for parents) and the 4th Amendment (for children) is clearly established. 9th Circuit case law at the time of the incident clearly established that as part of that right, parents and children have a right to be free from judicial deception in child custody proceedings and removal orders. Judicial deception may occur through either affirmative misrepresentation or deliberate omission. The facts alleged state a plausible claim that the defendant officer prepared a petition that intentionally omitted any reference to the custody order, and did not otherwise inform the court of the order; and that had the judge been informed, the court would not have granted the order. It therefore stated a plausible claim for violation of the mother's and child's right familial association based on judicial deception. Any reasonable official would understand that deliberately concealing material custody information from a court for the purpose of depriving a custodial parent of a child violates the law. The allegations that the defendant officer's participation in removing the daughter and placing her in the father's custody also stated a plausible claim that the defendant violated clearly established law that removal of a child from a parent without the parent's consent or a court order, absent reasonable cause to believe the child is in imminent danger, violates the right to familial association. The facts alleged also state a plausible claim that the continued separation exceeded that reasonably necessary to avert the specific injury at issue.
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