00-1429 Morrell v. Mock, et al.

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“[W]e must balance the nature of the private interests at stake, the risk of harm from erroneous deprivations, and the government’s interests affected… We believe that the same considerations underlying the recognition of a parent’s due process right to pre-deprivation notice and hearing justify the requirement of pre-deprivation notice and some opportunity to object in the enforcing state, at least when the rendering court’s order is by default. To hold otherwise would force the parent to litigate her jurisdictional objections in any state chosen by an adverse party (even if, as Morrell asserts was the case here, the state lacked any connection with the child or personal jurisdiction over the parent), or else risk enforcement without notice in another state before she has an opportunity to mount a collateral attack. This result would be inconsistent with the due process limitations on a state’s jurisdiction that the right of collateral attack protects, see Williams, 325 U.S. at 229; County of Cook, 167 F.3d at 388, and is also inconsistent with a proper balancing of the competing interests at stake.

“We therefore hold that Morrell has stated a claim for deprivation, without due process, of her and her child’s liberty interest in not being separated, based on the defendants’ seizure of Joshua, without prior notice to her in Illinois and without exigent circumstances, pursuant to the default order entered in New Mexico.

“But Morrell has not identified, and we have been unable to find, any authoritative cases considering analogous circumstances that hold that pre-deprivation notice and an opportunity to be heard is required as a matter of constitutional due process before a state may enforce another state’s custody order… Therefore, although Morrell has stated a claim for deprivation, without due process, of a protected liberty interest, we hold that the defendants’ conduct in seizing her child was not contrary to clearly established law.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Williams, J.