Guidelines reiterate openness in New York family courts

The New York court system released guidelines this week to help ensure public access to family proceedings, following a news report that the explicitly recognized right is regularly violated.

“The court must be mindful of the presumption of open access before excluding any person from a Family Court proceeding,” said A. Gail Prudenti, chief administrative judge of the New York courts, in a memorandum to administrative judges statewide.

The memo reminds the judges of a court rule adopted in 1997 requiring family court judges to routinely open their courtrooms to the public, absent compelling and specific reasons for closure. Despite that mandate, however, a Nov. 17 New York Times article reported that a journalist “tried to enter 40 courtrooms [during one week] in [New York City’s] five Family Courts as a member of the public or a civic group monitoring the courts would. Entry was permitted to only five of the courtrooms . . . a closing rate of nearly 90 percent.”

The reporter encountered “antagonistic” court officials and officers, several of whom cited “court policy” as the rationale for barring public access, according to The Times report. One judge called the reporter to the bench and told him he had to present his credentials to the court clerk on another floor, the article stated. In another instance, the chief court clerk told the journalist he had to answer the clerk’s questions before gaining access, it added.

Although the presiding judge still has, under the new guidelines, the discretion to exclude the public from a family proceeding, he or she must, on a case-by-case basis and prior to ordering the exclusion, make findings based on supporting evidence that the closure is warranted. That determination should be guided by such factors as protecting the privacy of parties, especially children, and preventing a disruption in the proceeding, according to the 1997 rule.

In addition to reiterating the procedure for barring public access, the guidelines state that court staff, “in a respectful manner,” may ask each person who wants to observe a proceeding if he or she is a party, witness or otherwise associated with a specific case scheduled to be heard. Courtroom staff will inform the judge of the presence of a member of the news media or general public and advise whether that individual has any role in the matter. When that case is called, the judge may notify the litigants that an outside party is in attendance and ask if they have any objections. The memo also notes that a person who wishes to observe the proceeding will be allowed to sit in the courtroom subject to capacity limitations.

"Opening the family court more than 10 years ago was an important improvement to the court system because it allows the public to see how justice is meted out. Our system really is based on free and open courts," Dennis Hawkins, executive director of The Fund for Modern Courts, a nonprofit court reform organization that published reports on the openness of various family courts statewide, said in an interview.

"We are delighted the chief judge reaffirmed a commitment to the openness of the court system. Important things happen in family courts, and openness helps the public understand the issues but also brings a level of transparency to the proceedings."

The U.S. Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings. However, many federal and state courts have recognized a public right of access to proceedings in civil cases, including those heard in family courts, though they have differed on the origin and scope of the right.

Moreover, statutes or court rules like the 1997 New York court rule that established the presumption that family court proceedings are open to the public and news organizations often govern public access to court proceedings.