Party's Over for ex parte Order

Doe v. Doe (ICA February 27, 2009)

Background.  Mother and Father had a child.  Mom had physical custody and Dad had visitation rights.  For about two years a custody battle ensued.  Various guardians ad litem were appointed and temporary restraining orders filed.  Dad filed an ex parte motion for immediate change of custody on the grounds that Mom was constantly filing TROs against Dad and that she taught their child to say that Dad was molesting her.  Attached to the motion was evidence from a guardian ad litem that Mom failed a polygraph test.  The ex parte motion was granted without a hearing and the police took the child.  Mom moved to vacate the ex parte order on the grounds that it unconstitutional.  The family court eventually held a trial on all matters in the case.  The family court concluded that the constitutionality of the ex parte order was moot because custody matters were litigated at trial.  The family court awarded custody to Dad, who later moved to California with the child, Mom with visitation rights.  Mom appealed.

Moot 'em up.  The family court concluded that the ex parte order's constitutionality is a mooted by the ultimate resolution of the custody battle after trial.  The ICA disagreed.  The mootness doctrine applies when "events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for justiciability relevant on appeal--adverse interest and effective remedy--have been compromised."  Hamilton v. Lethem, 119 Hawai'i 1, 5, 193 P.3d 839, 843 (2008).  The ICA held that the ex parte order awarding physical custody to Dad twenty months before trial had such a serious effect on the ultimate custody award that it cannot be considered a moot issue.  The ex parte order colored the proceedings after its issuance.  Much of the family court's findings and conclusions rested on the fact that present custody was with Dad.  Furthermore, according to the ICA, even if it is moot, the issue would fall under the collateral-consequences exception recently unveiled by the HSC in Hamilton.

Mootness may Depend on the view.  The analysis is a bit unclear here.  Two components must be compromised for a case to be moot: adverse interests and effective remedy.  No one can question Mom and Dad's interests are adverse.  As for the other component, the ICA noted Mom argued it was justiciable on appeal because the effective remedy would be a new trial "untainted by the impacts" of the ex parte order.

Rethinking Mootness: Jurisdiction v. Justiciability?  According to the ICA "[m]ootness is an issue of subject matter jurisdiction."  Although the ICA did not cite it, this statement is similar to a recent articulation in Hamilton v. Lentham, 119 Hawai'i 1, 4, 193 P.3d 839, 842 (2008), in which the HSC stated that it was "axiomatic that mootness is an issue of subject matter jurisdiction."  This is news.  Mootness has been described as an aspect of the "prudential rules of justiciability."  Doe v. Doe, 116 Hawai'i 323, 326, 172 P.3d 1067, 1070 (2007).  Other aspects of justiciability include ripeness, political questions, advisory opinions, and standing.  Justiciability is a doctrine courts impose on themselves.  See Life of the Land v. LUC, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981).  And because it is self-imposed, just about every aspect of the doctrine is loaded with exceptions--especially mootness--and courts can afford to be flexible.  See IndyMac v. Miguel, 117 Hawai'i 506, 515, 184 P.3d 821, 830 (App. 2008).  Jurisdiction, on the other hand, is not self-imposed and there is probably no room for flexibility.  When a court does not have it, it cannot proceed.  So it is unclear how mootness is an "issue of subject matter jurisdiction."  (It's even more unclear why the ICA did not cite Hamilton.)  Have the two concepts been mixed together?  Perhaps it means that there is no real difference between the two?

"Fertile Grounds for Misuse of the Judicial Process."  A parent's right to care, custody, and control of his or her child is a fundamental liberty interest protected by the federal constitution.  Troxel v. Granville, 530 U.S. 57, 65 (2000).  Similarly, the right to rear children is protected by the Hawai'i Constitution and "parental rights cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner."  In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002).  The ICA agreed with Mom that the State deprived her of her fundamental liberty interest in the custody of her child without due process of law.

"At its core, procedural due process of law requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest."  State v. Bani, 97 Hawai'i 285, 293, 36 P.3d 1255, 1263 (2001).  According to the ICA, the notice and the opportunity to be heard must usually happen before the deprivation.

The ICA held that absent exigent circumstances, the Hawai'i Constitution requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody.  The ICA noted that absent a true emergency, "ex parte custody proceedings can provide fertile ground for misuse of the judicial process."  The ICA further held that if there is a true emergency requiring an immediate change of custody, the ex parte order still has to include "(1) a post-deprivation hearing, promptly set; and (2) the grounds for this extraordinary measure.  A parent deprived of custody in this manner must be given a prompt and meaningful opportunity to address the allegations supporting the immediate change of custody."

Other Issues.  The ICA addressed issues concerning protective orders under the rules of the family court, the appointment of guardians ad litem, and interpreting the best interests of the child, and evidentiary rulings.  It should be noted that the results from polygraph tests and a person's willingness to take a test are inadmissible for any purpose.  State v. Chang, 46 Haw. 22, 31-38, 374 P.2d 5, 11-14 (1962).


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