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FULLER v. HARDING

September 6, 1988

MARGARET W. FULLER, et al.
v.
RAY M. HARDING, Judge et al.



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 I have before me a very unusual civil rights action brought by plaintiffs pursuant to 42 U.S.C. § 1983 and § 1985(3). Defendants Ray M. Harding and The Church of Jesus Christ of Latter Day Saints (Mormons) have each filed motions to dismiss which the court must now resolve.

 I. Facts1

 Plaintiffs' complaint arises out of a dispute between Plaintiff Margaret W. Fuller and her first husband, Warner P. Woodworth, over the temporary custody of their fourteen (14) year old son, Marc. Plaintiffs are Margaret W. Fuller, Marc's mother, and Anne Woodworth and David W. Woodworth, two of Marc's older siblings. Defendants are Utah state judge Ray M. Harding and the Church of Jesus Christ of Latter Day Saints (Mormon Church).

 The general facts leading to this lawsuit can be stated as follows. When Plaintiff Margaret Fuller and her first husband were divorced, the Utah state courts granted custody of their two older children, Anne and David Woodworth, to Ms. Fuller. Mr. Woodworth was granted custody of the couple's two younger children, Julie and Marc Woodworth.

 Marc visited Plaintiff Fuller at her home in Pennsylvania in the summer of 1986 pursuant to a Utah state court order. Marc was scheduled to return to his father's home on July 27 or 28, 1986. On July 24, 1986, Plaintiff Fuller filed a petition in the Court of Common Pleas of Montgomery County, Pennsylvania seeking custody of Marc. Her request for a temporary custody order on that day was denied by the court. A hearing was scheduled for August 21, 1986.

 On July 31, 1986, Judge Ray M. Harding of the Fourth Judicial District of Utah County, State of Utah, issued an Order for the immediate return of Marc to his father's custody. The July 31, 1986 order was based on the motion of Mr. Woodworth and was issued because Plaintiff Fuller had not returned Marc to his father as she was required to do. The July 31, 1986 order directed the police in any district where Marc was found to assist Mr. Woodworth in obtaining physical custody.

 On August 1, 1986, at 10:00 a.m., the Pennsylvania state police arrived at Plaintiff Fuller's home to pick up Marc. The state police agreed to defer action pending an emergency hearing in the Court of Common Pleas of Montgomery County. A hearing was held before the Honorable Anita B. Brody at 1:30 p.m. that day. Marc Woodworth, his brother David, his father, and his mother were all heard by the Court. In addition, Judge Brody spoke to Judge Harding on the telephone during the hearing. Judge Harding assured Judge Brody that he would entertain a motion to modify of the parties' custody decree in Utah if Warner Woodworth was planning to move to Hawaii and was planning to take Marc with him so that communication with his mother would be very difficult if not impossible.

 At the conclusion of the hearing, Judge Brody ruled that she had no jurisdiction and had to respect the Utah order and give it full faith and credit, thereby returning Marc to his father. She also recommended to Plaintiff Fuller that if she wished to modify the existing custody order she should return to Utah to do so. Sometime on August 1, 1986, a criminal information was filed in Utah state court charging Margaret Fuller with the felony of custodial interference because she had detained her son beyond the permitted visitation period.

 Plaintiff Fuller did seek modification of the custody order in the Utah state court. When Plaintiff Fuller arrived in Utah, she was arraigned on her criminal indictment. Shortly thereafter, on August 18, 1986, a hearing was held and an agreement reached between Plaintiff Fuller and Mr. Woodworth. The agreement was read into the record as a stipulation between the parties, and it provided that "based on Marc's choice" he would return to Pennsylvania with his mother and remain there, in her temporary custody, until July 1, 1987. This stipulation was incorporated in a proposed order and signed by Judge Ray M. Harding on September 2, 1986.

 Marc Woodworth did not return to Pennsylvania with Plaintiff Fuller, and he has not returned to Pennsylvania as of the date of this memorandum and order. Apparently, Marc's father first attempted to persuade Marc not to go to Pennsylvania. Mr. Woodworth hid Marc from Plaintiff Fuller and her counsel. Mr. Woodworth then took Marc to Hawaii. Subsequently, Plaintiff Fuller returned to Pennsylvania.

 In November, 1986, Plaintiff Fuller contacted Hawaiian authorities and began proceedings to obtain temporary custody of her son based on the September 2, 1986 Utah state court order and 28 U.S.C. § 1738A, which requires states to give full faith and credit to the valid custody decrees of other states. On February 18, 1987, based on the September 2, 1986 Utah order, the Hawaiian authorities picked up Marc Woodworth, placed him in protective custody pending transportation to Pennsylvania, and telephoned Plaintiff Fuller to arrange transportation. On February 19, 1987, when Plaintiff Fuller called the Hawaiian authorities to make final travel arrangements, they stated that Defendant Judge Harding had intervened surreptitiously in the enforcement of his own Order and explained "I never intended for Marc Woodworth to go to Pennsylvania with his mother". The Hawaiian authorities further stated that, because of Judge Harding's unilateral intervention, their hands were tied and that they would have to return Marc to his father.

 Plaintiff Fuller did not try to enforce her right to custody of Marc further in any state court system after February, 1987, and she has had no contact with Marc since his father took him to Hawaii. Plaintiffs filed this action in federal court after they became aware that Julie Woodworth, whose permanent custody was modified from Warner Woodworth to Plaintiff Fuller in December, 1987, ...


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