Anonymous v. Anonymous

263 A.D.2d 341, 705 N.Y.S.2d 339, 28 Media L. Rep. (BNA) 2402, 2000 N.Y. App. Div. LEXIS 2855
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 16, 2000
StatusPublished
Cited by15 cases

This text of 263 A.D.2d 341 (Anonymous v. Anonymous) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anonymous v. Anonymous, 263 A.D.2d 341, 705 N.Y.S.2d 339, 28 Media L. Rep. (BNA) 2402, 2000 N.Y. App. Div. LEXIS 2855 (N.Y. Ct. App. 2000).

Opinion

OPINION OF THE COURT

Sullivan, P. J.

In this matrimonial action between, as described by plaintiff father, “well-known public figures of great wealth and prominence!,] * * * [e]ach * * * covered extensively by the media,” the hearing court, over defendant mother’s objection, granted the father’s motion, made pursuant to Domestic Relations Law § 235 (2), to exclude all persons other than the parties, their counsel and the witnesses from the child custody and support trial. The court concluded that closure of the courtroom was in the best interest of the parties’ four-year-old daughter. In reviewing the propriety of that ruling, which requires a balancing of the principle that ours is a system of justice premised on public, not private, trials against the court’s special interest in protecting minors from harm where sensitive matters are involved (People v Ferber, 52 NY2d 674, 679, revd on other grounds 458 US 747; Matter of Ruben R., 219 AD2d 117, 123, lv denied 88 NY2d 806; see, Webster Groves School Dist. v Pulitzer Publ. Co., 898 F2d 1371, 1375), we are unpersuaded that, based on the present record, the father has made the requisite showing for closure. Accordingly, we reverse.

“Public access to court proceedings is strongly favored, both as a matter of constitutional law (Richmond Newspapers v Virginia, 448 US 555) and as statutory imperative (Judiciary Law § 4).” (Anonymous v Anonymous, 158 AD2d 296, 297; see also, Matter of P. B. v C. C., 223 AD2d 294, 295, lv denied 89 NY2d 808.) The rule that judicial proceedings are open to the public is not absolute; the courtroom may be closed where compelling reasons exist. (Matter of Herald Co. v Weisenberg, 89 AD2d 224, affd 59 NY2d 378; Merrick v Merrick, 154 Misc 2d 559, 562, affd 190 AD2d 516; Matter of P. B. v C. C., supra, at 295.)

[343]*343The presumption of openness is particularly subject to challenge where the interests of children are implicated. Thus, Domestic Relations Law § 235 (2) permits the court to close trials to all but the parties and their counsel in, inter alia, matrimonial proceedings and proceedings for custody and maintenance of a child. It may do so, however, only “[i]f the evidence * * * be such that [the] public interest requires that the examination of the witnesses should not be public.”1 (Ibid.) In addition, Uniform Rules for Trial Courts (22 NYCRR) § 205.4, which has been extended to child custody disputes in the Supreme Court (see, Matter of P. B. v C. C., 223 AD2d, supra, at 296), permits the public to be excluded from the courtroom.

In making its closure determination, the court must strike “the proper ‘balance [between] the right of access of the public and the press to judicial proceedings [and] the * * * interest in protecting children from the possible harmful effects of disclosing [harmful information] to the public.’ ” (Matter of P. B. v C. C., supra, at 296, quoting Matter of Katherine B., 189 AD2d 443, 450.) “Judicial discretion must be exercised against a strong presumption of openness.” (Matter of M. S., 173 Misc 2d 656, 659.) Among the factors the court may consider in exercising its discretion under section 205.4 is whether “the orderly and sound administration of justice, including the nature of the proceeding, the privacy interests of individuals before the court, and the need for protection of the litigants, in particular, children, from harm,” requires closure. (Uniform Rules for Trial Cts [22 NYCRR] § 205.4 [b] [3].)

Domestic Relations Law § 235 (2), pursuant to which, as noted, the father moved, authorizes closure not because of the private interests of the litigants but only if the public interest requires it. (Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C235:2, at 174.) The father does not, however, argue that the public interest requires closure. Rather, he points to the “threat” that the “custody and support trial will expose the specific actual details of the child’s day-to-day existence with each of her parents” and argues that if these details are exposed, “the parties’ and the child’s safety and security would be severely compromised.” The possibility of revelations of such “specific actual details” is, [344]*344at best, highly speculative. In any event, less restrictive alternatives to closure can be employed to assure that details which may compromise the child’s safety are not mentioned in open court (see, Uniform Rules for Trial Cts § 205.4 [b] [4]), e.g., excluding the public and the press from a limited portion of the testimony. Thus, in our stay of the order appealed from pending determination of this appeal, we directed the trial court “to implement, in its discretion, alternative security measures.”

The second ground that the father puts forth for closure is the risk of psychological harm the child may suffer if the proceedings are conducted in public. Despite extensive media coverage regarding the breakup of the parties’ marriage, the court-appointed forensic psychiatrist who examined the child found that although she has “exhibit [ed] a growing sense of awareness of the conflict” and has “raise [d] serious issues of concern to her, including finances and parental conflict,” she is nevertheless “very healthy and handling the stress of [the] divorce with great resilience.”

While the psychiatrist opined as to the “unnecessary and known risk” that “[k]nowledge of the details of the religious issues, health care issues, financial, security issues, leisure time issues, and general parenting issues will certainly filter down from adults to [the child’s] peers,” there is no suggestion in her affidavit as to what harm, if any, might result. The psychiatrist’s conclusion that “allowing the public and/or the press to attend [the custody] trial will be to expose [the child] to a significantly greater risk of future mental health problems, due to the increase in her exposure to the conflict in her environment,” is, based on this record, speculative. The possibility of some unspecified future harm does not constitute a compelling interest justifying closure. The questions at issue in this custody dispute are fairly common and stand in stark contrast to the expected “damaging information” justifying closure in Matter of P. B. v C. C. (223 AD2d 294, 297, supra).2 If a custody trial can be closed to the public on the showing made here, then closure of the courtroom would be the rule, not the exception, in custody cases. The argument can always be made — in any case — that it is in the child’s best interest to shield her life from public gaze. Neither Domestic Relations Law § 235 (2) nor Uniform Rules for Trial Courts § 205.4 contemplates such a result.

[345]*345The father relies primarily on Matter of P. B. v C. C. (223 AD2d 294, supra), a highly publicized custody dispute between the parents of six children, one of whom was a successful film actor. That case, which involved allegations of drug and alcohol abuse and domestic violence, resulting in emotional and educational harm to the children that, our Court noted, had been “explicitly documented” (at 297), is factually distinguishable from this one.

Matter of Ruben R. (219 AD2d 117, supra), also cited by the father, is even more inapposite.

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Bluebook (online)
263 A.D.2d 341, 705 N.Y.S.2d 339, 28 Media L. Rep. (BNA) 2402, 2000 N.Y. App. Div. LEXIS 2855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anonymous-v-anonymous-nyappdiv-2000.