Shannon’s Soapbox: Judges & Absolute Immunity
shannon@richardsonmediagroup.com
The family court system is a tricky system for parents involved to navigate. Chancery Judges (the ones presiding over family court issues) decide the fate of a child, but what happens when that Judge makes a mistake? What happens when you have warned the court over and over again that the child is being abused or that the child is in danger and the Judge still allows the child to have unsupervised contact with the other parent? What happens when that child suffers or even dies at the hands of a Judge’s decision?
ABSOLUTE IMMUNITY
Can a parent sue? Judges are absolved of all the decisions they make due to something called “absolute immunity.” So the answer is no, a parent cannot sue a Judge for a decision they make. Even if that decision results in a child’s abuse or death.
The immunity, when recognized, is absolute and means judges are not liable in civil actions for their judicial acts, even when done maliciously and corruptly. “The law is clear, that in general no action can be supported against a judge or justice of the peace, acting judicially and within the sphere of his jurisdiction, however erroneous his decision, or malicious the motive imputed to him.” Cunningham v. Dilliard, 20 NC 485 (1839).
“Judges and judicial officers have always been awarded absolute immunity for their judicial acts. Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury.” State ex rel. Jacobs v. Sherard, 36 NC App 60, 64 (1978).
DEATH AT THE HANDS OF JUDGES
Children are dying all over the United States every single day because of Judge’s decisions.
According to an article by USA Today, “Nearly every six days in the U.S., a child is killed amid a custody dispute, family court lapse, or other mishaps. Each death is a tragedy. Collectively, these cases reveal a national crisis in the family court system that regularly misses warning signs and exposes too many kids to abuse and death, advocates say.”
During the past decade, at least 98 children in 40 American states have been killed by a parent or parental-figure after a family court allowed them unsupervised contact with the child, according to the Center for Judicial Excellence.
In these cases, the family court was told beforehand about the parent’s or parent-figure’s violent history, mental illness, and/or risk of harming a child, according to CJE.
More than 58,000 children are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States, according to the Leadership Council on Child Abuse & Interpersonal Violence.
Forty-seven percent of custody evaluators still recommend unsupervised visitation even when there are reports of violence in the family, according to a 2011 National Institute of Justice study.
With that being said, what CAN a parent involved in a custody dispute do to combat a Judges decision if said Judges are absolved of any misconduct?
STEPS A PARENT CAN TAKE
In Tennessee, you can report a judge for misconduct by contacting the Board of Judicial Conduct. The Board is responsible for investigating complaints and taking disciplinary action against judges when warranted. To make a complaint, you must submit a notarized affidavit detailing the alleged misconduct. Information can be found here: www.tncourts.gov/board-of-judicial-conduct
A parent may also file an appeal.
An appeal is not a way to get a second chance because the case didn’t end up as you had hoped, however. Your attorney presents evidence from your original trial via court transcripts. This is why it’s important to pay for a court reporter because, without one, you have no transcripts to be able to appeal your case. The goal is to show where a Chancellor may have made mistakes because, yes, sometimes Judges get it wrong.
In Tennessee you have to file an appeal within 30 days of the trial courts judgement or you will have lost your chance permanently.
NEW TN LAWS IN EFFECT 2024
New laws that went into effect in TN this year may help. Abrial’s Law makes changes to child custody laws in Tennessee, particularly when it comes to abusive situations. The law states that the court can’t remove a child from a parent in a custody dispute if that parent has shown to be competent, protective of the child, and not physically, sexually or mentally abusive. It also prohibits the parent in the custody battle from being penalized for making a “good faith complaint” about any domestic violence or child abuse.
TN Judges will also be required to complete at least two hours of training or continuing education courses on domestic violence or child abuse per year. The law is aimed at ensuring that judges involved in child custody proceedings are better equipped to handle cases involving domestic violence or child abuse.
TERM LIMITS
However, even with making a complaint, filing an appeal or new laws in effect, it seems like Judges are just sitting on the bench for too long. Judges serve 8-year terms, unlimited as far as re-election. And lets be honest, Judges have been serving in the same positions for far too long. Laws should be changed to combat this. And let's be honest here, Judges should be held accountable for their rulings.
JUDICIAL ACCOUNTABILITY
If a child dies in a family law proceeding after a parent has warned the court and provided sufficient evidence to show that another parent is abusive (mentally, physically or sexually), neglectful, a child is in danger because of drug abuse by the parent, or a parent has a child around someone dangerous, then that Judge should have to take full responsibility for their ruling.
If they are going to rule on it then they should have the courage to stand behind that ruling.
A lot of Judges take the stance that both parents should have time with the child because they are “entitled” to that time, however I do not believe that should be the case. Some parents should have never been parents to start with. Unpopular opinion, I know, but if a Judge MUST allow a parent to have access to the child and the other parent has shown evidence to the contrary—then the Judge ought to put in supervised restrictions. If the Judge doesn’t, then laws should be put into place to hold Judges accountable for their negligence.
