E.A. v. Mary Gardner
E.A. v. Mary Gardner
Opinion
This case began as a child-custody dispute in state court. Dana Alden and his wife divorced in 2009. They shared custody of their two children. In 2012 Alden's ex-wife complained to the court that Alden was trying to turn the children against her. The court appointed a psychologist, Mary Gardner, to evaluate the children. See 750 ILCS 5/604.10(d). Gardner concluded that Alden was using "severe alienation tactics" to drive a wedge between Alden's children and their mother. Gardner recommended that the court limit Alden to supervised visitation and give full custody of the children to their mother. After motions and a hearing, that's what the state court did: it terminated Alden's custody, awarded sole custody to the mother, and ordered all of Alden's visitation to be supervised. The Appellate Court of Illinois affirmed.
In re Marriage of Alden
,
In 2013 Alden asked the court to rescind the supervised visitation requirement. (Illinois courts can modify visitation orders in post-judgment proceedings. See former 750 ILCS 5/607(c) (in effect in 2012) and current 750 ILCS 5/603.10(b) (effective 2016).) Gardner did additional evaluations but concluded that circumstances had not
*924
changed. After another hearing, Alden failed to persuade the court to modify its order. He appealed unsuccessfully.
In re Marriage of Alden
,
After these three unsuccessful outcomes in state court, Alden changed his strategy. He filed this federal suit under
Alden presents two theories for the statute's invalidity. First, he argues that the statute violates the First Amendment (applied to the states by the Fourteenth) by regulating speech: it takes parents' speech into consideration when deciding on the best interests of the child. Second, he contends that the statute violates the Fourteenth Amendment's equal protection clause because it treats parents differently based on whether they are divorced: the standard of proof for awarding or modifying divorced parents' custody is preponderance of the evidence, 750 ILCS 5/602.7(b), 750 ILCS 5/603.10, while otherwise the standard for terminating parental rights is clear and convincing evidence, 705 ILCS 405/2-21(5)(iii). (The statutes explicitly referencing the preponderance standard were enacted in 2015, after Alden's state court case began. State courts had interpreted the predecessor statute on modifying visitation, former 750 ILCS 5/607, as requiring a preponderance standard. See
In re Marriage of Slayton
,
The district court dismissed the case for lack of jurisdiction, holding that Alden lacks standing. He didn't show that any of the injuries he alleges is traceable to Gardner as opposed to the independent action of the state judiciary. Nor did Alden contend that victory in this suit would change custody arrangements. If he had, then the
Rooker
-
Feldman
doctrine would bar the suit: state court losers can't come into federal court to complain that the state court judgment violates their federal rights. See
Rooker v. Fidelity Trust Co.
,
On appeal Alden leads with the curious argument that Gardner can't challenge
his
standing because
she
lacks standing. Alden relies on
*925
Diamond v. Charles
,
Gardner does not enforce any state law. She did not initiate proceedings as a prosecutor might in a criminal proceeding. She is instead a psychologist who provided information to the state court. The state judiciary, not Gardner, made the decision to remove Alden's children from his custody.
Alden has a heads-I-win-tails-you-lose conception of this litigation. He thinks that Gardner can't defend against his claim because she lacks standing. (Indeed, he insists that Gardner "has no business making an appearance in this Court and had no business making an appearance in the district court.") He characterizes Gardner's position as an effort to defend the rights of another-namely, the State of Illinois. Yet Alden thinks that he has still sued the state by suing Gardner "in her official capacity," that the Attorney General of Illinois should be defending this case, and that he is entitled to a summary decision in his favor because the state has not defended its legislation.
The State of Illinois did not defend for the simple reason that it was not sued. Indeed, Alden
cannot
sue Illinois in its own name because it is not a "person" for the purpose of § 1983. See
Will v. Michigan State Police
,
Alden had a straightforward way to raise his constitutional arguments: in the proceedings regarding his parental rights. State courts can and do consider constitutional arguments in custody cases. See, e.g.,
In re Marriage of Bates
,
It is difficult to see how Alden can litigate his theories in federal court even had he found someone suable. He just wants to raise an issue he could have raised before. And
that
runs into preclusion problems. See
Golden v. Helen Sigman & Associates, Ltd.
,
*926
Cf.
Lance v. Dennis
,
A note about how we have identified the plaintiffs. Alden filed this suit without using his own name, and the complaint gives the names of his children as John Doe and Jane Doe. Minors are entitled to litigate anonymously, but under Fed. R. Civ. P. 5.2(a)(3) the right way to provide anonymity is to use initials rather than generic names such as "John Doe." We have changed the caption accordingly. And we have given Alden's own name in the caption and throughout the opinion. He is an adult and has not provided a reason that could support allowing him to litigate in secret. Only "exceptional circumstances" justify the use of a fictitious name for an adult party.
Doe v. Blue Cross & Blue Shield United of Wisconsin
,
This is abusive litigation. Alden, a lawyer representing himself, seems determined to continue the child-custody litigation in another forum even if that means exposing an innocent person such as Gardner to travail and expense. He concedes-indeed, he trumpets-that he has sued someone who he knows is not responsible for enforcing the state's child-custody laws. We give Alden 14 days to show cause why we should not order him to reimburse Gardner's legal expenses or impose other sanctions. See Fed. R. App. P. 38. And we will send a copy of this opinion to both state and federal bodies with authority over the conduct of the bar, so that they can determine whether Alden's misuse of the legal process calls into question his fitness to practice law.
AFFIRMED
Reference
- Full Case Name
- E.A. and J.A., Minors, by Their Father Dana A. Alden as Next Friend, Plaintiffs-Appellants, v. Mary K. GARDNER, Defendant-Appellee.
- Cited By
- 16 cases
- Status
- Published