A person may not open an entrance opposite another entrance or a window opposite another window toward a courtyard belonging to partners, so as to ensure that the residents will enjoy a measure of privacy.” Mishnah, Babylonian Talmud, Masechta Bava Basra 60a.

Heavily litigated divorce proceedings are not only stressful but may also infringe upon each party’s ability to shield private matters from public scrutiny. I have witnessed the humiliation of many a client who, when forced to proceed in open court, encountered someone they did not wish to share personal details with. There are a number of reported cases in which a party’s right to privacy was tested against the public’s right to know. These cases encompass a number of legal issues including (a) identification of the parties; (b) closure of courtrooms; (c) unsealing of documents; and (d) dissemination of information. Samples of reported cases appear below.


Anonymous Captions

One way to ruin your day is to see your name highlighted in a reported divorce case. Parties often seek permission to use an “anonymous caption” for their case so that their names do not appear in documents open to public view. However, the cases are clear that you do not get to exclude your name from the case caption just for the asking.

One of the more informative decisions in this area derives from a case aptly entitled Anonymous v. Anonymous. This heavily contested matter made its way to the appellate court, which rendered a decision in 2006. The parties battled over family issues in both New York proceedings as well as in proceedings held in France. In discussing the propriety of shielding the parties’ names from public view, the New York court noted that anonymous captions should be approved sparingly and only when unusual circumstances necessitate it.

A later case, entitled Anonymous v. Lerner, involved a wife’s application to exclude her identity from the name of the case. In ruling against the wife, the court engaged in a judicial balancing of the wife’s privacy interest vis-à-vis the presumption in favor of open proceedings. One fact that influenced the court here was that the wife had divulged details of her marital issues to the media before filing for divorce. Under such circumstances she was hard pressed to argue that she needed to safeguard her rights to nondisclosure of personal information.

A recent non-divorce case out of Westchester County involved delicate issues concerning embarrassing information. That case was entitled John Doe v. The Roman Catholic Diocese of New York. In this matter, the aggrieved party (the plaintiff) alleged that he had been abused by a priest as a youth. An injury suit was commenced against a number of parties (the defendants) including the archdiocese. The alleged victim wished not to be identified by name and sought the court’s permission to proceed by use of an undisclosed identity. One of the arguments raised was that this individual, by now an adult, had children who would be harmed if the incidents complained of were made public.

The court was placed in the difficult situation of having to determine whether the plaintiff’s privacy rights should outweigh the defendants’ rights to know their accuser. Ultimately, the court determined that the plaintiff’s identity must be disclosed. It found that the defendants would encounter severe disadvantage and prejudice if they would not be able to identify the party who claimed to have been abused.

Matter of Debbie E. v. S.F. and T.E. is the name of a case out of family court concerning a grandparent’s right to visitation with her grandchild. The grandmother requested an anonymous caption. In support of her request, the grandmother indicated that she had been involved in the matrimonial law field for 20 years, and that the child’s mother was well known in the field of Jewish education. She argued that publication of the parties’ names would cause harmful embarrassment to her family. Notwithstanding the grandmother’s concerns, the court found that the case did no merit being assigned an anonymous caption.


Closure of Courtrooms

There is a strong policy in our nation’s courts to ensure public access to courtrooms. This principle was stated succinctly by the United States Supreme Court in the case of Richmond Newspapers, Inc. v. Virginia. Here, the nation’s highest court opined as follows:

  • “in guaranteeing freedoms, such as those of speech and press, the
  • First Amendment can be read as protecting the rights of everyone
  • to attend trials so as to give meaning to those explicit guarantees. “

The New York Judiciary Law (Section 4) adheres to an open court policy, but indicates that in certain cases, including divorce matters, the court may exclude persons who are not directly related to the proceedings.

In Crocker C. v. Anne R., the parties were embattled in contentious custody proceedings. The husband argued for closure of the courtroom. He maintained that an open courtroom would be detrimental to his children’s wellbeing. By the time the husband applied for closure the case had already received tabloid media coverage. In the course of the litigation, the wife had accused the husband of salacious behavior, presumably to challenge his ability to parent.

The court denied the husband’s request to close the courtroom. The court made note of the fact that the case had already received substantial media attention, and no showing had been made that the children had previously been in any way harmed or bullied by disclosure of family information. The court also noted that if judges had to close the courtroom in every case that involved misconduct or embarrassing behavior there would be few custody cases open to the public.


Unsealing of Records

Section 235 (1) of the New York State Domestic Relations Law protects divorcing parties from the release of many documents in the courts’ files. Generally, such documents are under seal and are only available for release to the parties or their attorneys, unless otherwise authorized by court order. Occasionally requests are made to the divorce court by outside parties for release of such documents.

Solomon v. Meyer was a legal action involving disputed claims over personal property. A Ms. Solomon alleged that Ms. Meyer was holding her personal property and would not return it. She sought money damages if the property was not returned to her. Ms. Meyer challenged the value of the property and applied for a court order seeking permission to obtain documents from her opponent’s divorce files. Her claim for release of the divorce files was based upon her belief that the issue of the value of the personal property had been a subject addressed in the divorce case. Before rendering a final ruling, the court indicated that it would inspect documents from the divorce file to see whether they were in any way relevant to the property lawsuit.

           Another interesting matter involving the overlap of legal issues in separate proceedings can be found in a New York county matter entitled Klipper v. Liberty Helicopters. The plaintiff in this suit alleged money damages resulting from the defendant’s misconduct. The claim for damages pertained to loss of future earnings and business revenue. Upon learning that the plaintiff had previously been divorced, the defendant sought release of the plaintiff’s files from the matrimonial proceedings. The defendant argued that the divorce files likely contained relevant information concerning the plaintiff’s revenue and income. Here, once again, a directive was made for the divorce files to first be reviewed by the judge handling the present proceedings. By proceeding in this manner the court would be able to engage in a balancing test concerning protection of privacy versus fairness to the current litigants.

In Kudsi v. Gee, an attorney had been sued for malpractice by a former divorce client. The client asserted that the attorney had not secured an uncontested divorce for her, a task for which had been hired. The attorneys defending the malpractice case sought release of sealed documents from the court’s file concerning the divorce. The argument by defense counsel was that the contents of the court’s divorce file would contain information relevant to the claim for financial loss. The court agreed with counsel for the defendants and ruled that privacy rights must give way to the defendant’s right to defend the malpractice claim.


Non-Dissemination Orders

Yet another privacy concern evolves when an attempt is made to communicate case details to the media or other outside parties. To prevent this from happening a party may seek to procure a “non-dissemination” order. The goal of these applications is to prevent communications about the cases to outside parties.

In Matter of Sepulveda v. Perez the parties were involved in a custody proceeding. The mother engaged in communications about the case with outside parties. The court appointed an attorney for the parties’ child. That attorney sought a court order barring the mother from engaging in discussion about the case with the media and from posting case details on Internet sites. The motion was denied after the court balanced the parties’ rights to privacy and free speech. However, the court also noted that any efforts by the mother that were determined to compromise the child’s privacy rights would be considered in determining which parent would be a more fit custodian.

Another interesting issue concerns the ability to restrain an outside party from releasing divorce details already provided to him or her. This was an issue in Torheim v. Blue & White Food Products. This case involved a feud over the parties’ failed venture to distribute food products. When the defendant learned that the plaintiff was divorced, the defendant contacted the plaintiff’s ex-wife seeking information and documentation from her concerning the divorce proceeding. Apparently, the ex-wife was willing to comply, and she provided the defendant with a deposition transcript from the divorce litigation. The plaintiff was strongly opposed to release of divorce information in the present business litigation.

In ruling on the propriety of the defendant’s acquisition of the divorce deposition transcript, the court noted that Domestic Relations Law Section 235 (1) prohibits court personnel from disseminating information concerning a divorce matter to non-parties. However, there is nothing in the law that would prohibit a party to the divorce proceeding from disseminating such information should they see fit. This would include an ex-wife, who presumably had no desire to be of help to her former spouse.

The cases cited above contain an assortment of privacy-related concerns. Such issues often arise in matrimonial proceedings. It is strongly suggested that individuals retain the services of experienced matrimonial counsel to help them navigate through these complex and often painful matters. My firm has been handling these types of issues for many years.