Photo by Richard Shotwell/Invision/AP
This is a condensed version of a white paper on access to family court proceedings, which will be published soon on our web site.
Davis Wright Tremaine media lawyer Alonzo Wickers IV likes to point out that access battles for divorce-court records helped launch President Barack Obama’s political career.
When Obama first ran for U.S. Senate, in 2004, he trailed opponent Blair Hull in the Democratic primary in Illinois.
But, as part of its “regular scrubbing of all of the candidates,” the Chicago Tribune tried to get records from Hull’s 1998 divorce, recalls John Chase, a politics reporter at the paper. A court had sealed most of Hull’s divorce files, but the Tribune discovered and divulged that Hull’s ex-wife had sought a protective order against him. Amidst public pressure, Hull personally released his closed files, which revealed that his ex-wife alleged that that he emotionally abused her.1
Obama then cruised to victory in the primary. His opponent in the general election was Jack Ryan, a wealthy banker who had divorced actress Jeri Lynn Ryan in a California court. These records were sealed, too, and the Tribune and WLS-TV fought to open them and won.
The materials revealed that Jeri Lynn Ryan alleged that the Republican candidate had forced her to go to “sex clubs” in Paris, New York, and New Orleans, where he insisted that the two have public sex.2
Many Republicans urged Ryan to drop out of the race, and he did so just a few days after the news broke. This paved the way for Obama to become a senator.
Chase remembers that some readers blamed the Tribune for suing to open Ryan’s divorce files. The candidate criticized the newspaper as well.
“The media has gotten out of control,” Ryan said in a statement. “The fact that The Chicago Tribune sues for access to sealed custody documents and then takes unto itself the right to public details of a custody dispute — over the objections of two parents who agree that the re-airing of their arguments will hurt their ability to co-parent their child and hurt their child — is truly outrageous.”3
Chase thinks the stories were fair game. Ryan had publicly denied that the files contained red flags, and that put the candidate’s trustworthiness at issue, the reporter said.
“They’re court records for god’s sake,” Chase said. “That’s one of the principles of democracy – being able to have your court records public.”
These episodes illustrate the competing issues that arise when the media wants access to divorce records or proceedings. On the one hand, openness gives the public a tool to check political candidates and other civic leaders, and it helps ensure that the rich and powerful are not getting special treatment in the courts. On the other, divorce files can contain very intimate personal details, and children’s well-being can be at stake.
Courts nationwide grapple with these competing interests. Although divorce proceedings have historically been open, judges sometimes close them.
This guide provides background on divorce proceedings, and an overview of access law in these areas. It also looks at the types of stories that can arise from these cases, and arguments that attorneys can make as well as factors that they should consider when seeking access.
Background on family and divorce courts
Divorce cases are civil proceedings that are normally held in family divisions of courts. Sometimes, though, they are in general civil divisions of state courts. These cases often include custody and child-support matters that are related to the dissolution of marriage.
Family courts handle many matters separate from divorce. These can include juvenile dependency issues, such as abuse, neglect, abandonment, visitation, and custody, as well as juvenile delinquency cases. The Reporters Committee for Freedom of the Press’s “Access to Juvenile Justice” guide details the law for dependency and delinquency proceedings. Historically and due to concerns for children’s wellbeing, courts typically are more willing to close those juvenile cases than they are many other types of proceedings, including divorce proceedings.4
Still, many courts do close divorce cases. When closures occur, they normally stem from privacy concerns relating to children or finances.
Wickers explained that family court judges can be more trigger happy to close courtrooms, including in divorce cases, because they often view their jobs differently than other judges do. They want to “find a win-win,” a good result for an entire family rather than one party, he said.
The unique culture of the family bar also can lead to sealing efforts, Wickers said. “The family bar is a much more insular bar,” he said. “They know each other. They’re in court every day against each other. They’re all kind of in cahoots. They all want it secret.”
South Carolina family lawyer Melissa Brown said there is good reason to seal many divorce cases: They reveal so many intimate details about clients’ lives (from their parenting decisions to where they shop) yet many of the clients never wanted to end up in court.
“Family court is a different place,” said Brown, who wrote a law review article on identity theft in family courts.5 “You’re dealing with real people’s personal situations. It’s not just a wreck or an employment dispute where it’s very narrowly tailored. It’s everything about their lives.”
Another unique feature of divorce cases is that the vast majority of them settle out of court, explained David Sarif, chair of the family law division of the American Bar Association’s committee on trial practice and techniques. This can affect access.
In South Carolina, at least, when parties settle with a formal agreement by the court, the agreement is normally public but is much less detailed than a trial order. The document focuses on the terms of the agreement rather than the underlying allegations, Brown said. If parties use a private arbitrator, their information will normally be private.
The law of access in divorce cases
This guide focuses on divorce cases that reach trial.
The Supreme Court has not directly addressed whether the public has a constitutional right to attend civil proceedings such as divorce cases, though a plurality found that “historically both civil and criminal trials have been presumptively open.”6 In Nixon v. Warner Communications, the Court found that the public has a right at common law to access civil records.7
Policies and practices for access to divorce cases vary from state to state and even from courtroom to courtroom.
According to the legal encyclopedia American Jurisprudence, public access to matrimonial cases “is strongly favored.”8 American Jurisprudence continues, “The mere desire of divorce litigants to hold a private divorce proceeding is insufficient justification to close the hearing to the public and the press.”9
In many states, divorce proceedings and records are presumptively open, and judges will only close them if they make specific findings that privacy outweighs the public right of access. Some states have statutes that restrict public access to parts of divorce cases, such as certain matters dealing with children or financial documents. (Our 50-state guide gives the legal standards for access to divorce cases in all 50 states, plus the District of Columbia.)
Historically, divorce cases, like other cases in the American court system, have been presumptively open.
An 1891 treatise on marriage and divorce cases emphasizes that there is a public right of access to these matters: “As a general rule, wherever, the common law prevails, trials in all causes are in open court, to which spectators are admitted. This method is regarded for the purity of our judicial system, and as a precaution against possible injustice. In reason and in ordinary practice, it extends to divorce causes.”10
By 1931, 19 states had statutes that governed access to divorce proceedings, and openness was the starting presumption in most instances.11
Some early case law tried to chip away at this transparency by arguing that divorces are different than other legal matters. In 1893, in In re Caswell, the Supreme Court of Rhode Island rejected a reporter’s request for divorce records.12 The court explained: to “broadcast the painful, and sometimes disgusting, details of a divorce case, not only fails to serve any useful purpose in the community, but, on the other hand, directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure.”13
The Caswell court further found that, while people can get records for “proper purposes,” they cannot do so to “gratify private spite or promote public scandal.”14 The U.S. Supreme Court used that language in dicta in Nixon, and parties opposing access often cite those words today.15
However, one leading pro-access case, Petition of Keene Sentinel, rejected this argument: “The motivations of [the press] – or any member of the public – are irrelevant to the question of access. We cannot dictate what should and should not interest the public.”16
Keene Sentinel involved a New Hampshire newspaper’s attempt to unseal the records of two separate divorces of Charles G. Douglas III, an incumbent candidate for the U.S. House of Representatives. Douglas argued that his privacy outweighed the public interest, and that the newspaper had no proper interest in his divorce.17
In rejecting Douglas’ arguments, the Supreme Court of New Hampshire established detailed guidelines for divorce access cases. It found that divorce court records are presumptively open and the burden of proof rests with the party seeking closure to “demonstrate with specificity” that there is a “sufficiently compelling interest” that outweighs the public’s right of access.18
The opinion continued that a “general privacy interest” is insufficient and that courts must examine all documents separately to determine if they should be sealed.19 Any closure must be as unrestrictive as possible – for instance, redactions of small segments are better than wholesale sealing, the court explained.20
Other key pro-access cases are Barron v. Florida Freedom Newspapers, Inc.21 and California’s Burkle v. Burkle,22 which both found that divorce proceedings are no different than any other civil matter.
But Katz v. Katz,23, in Pennsylvania, held the opposite. There, former Philadelphia 76ers owner Harold Katz argued that his equitable distribution proceeding should be closed because he has a right to have privacy in his personal life, and because publicity could cause harassment and harm his business interests.
The court “sympathize[d]” with Katz, reasoning that “he need not be exposed more than is necessary to the less enviable features which accompany [his] public status.”24
In contrast with Keene Sentinel, which found the public’s reason for seeking access irrelevant, the Katz court concluded that “no legitimate public purpose can be served by broadcasting the intimate details of a soured marital relationship.”25 Such disclosure “could serve only to embarrass and humiliate the litigants,” as the public can have little or no interest in how marital property is divided, the court explained.26
State statutes and court rules also help define the right of access to divorce proceedings.
Though divorce proceedings are presumptively open in many states, statutes define the right in different ways. The Iowa Code states that divorce hearings “shall be held in open court” but the “court may in its discretion close the hearings.”27 In Idaho, the “court may exclude all persons” in divorce cases.28 In Virginia, the presumption is that testimony in divorce proceedings is closed unless the court deems it otherwise: “In any suit for divorce, the trial court may require the whole or any part of the testimony to be given orally in open court.”29
The least access-friendly law is in Nevada, where divorce proceedings are private upon demand of either party.30
New York is unique because divorce proceedings are presumptively open, but divorce records are presumptively closed. But it is not uncommon for parties to leak divorce records to the press, said Edward Davis, a media lawyer at Davis Wright Tremaine in New York. While reporters are free to rely on leaked divorce records, they do not get the benefit of the fair and accurate report privilege if the information in the files is not accurate.31 This means that if the journalists are sued for defamation, they must rely on traditional fault defenses.
Some states have explicit provisions that let courts close certain parts of divorce hearings that deal with child custody. Some states also have statutory provisions that either automatically seal financial records or do so at the request of a party in a divorce case. This guide has sections on children’s interests and financial matters.
Making the case for access to divorce records
The Supreme Court in Nixon v. Warner Communications, Inc. warned in dicta that people should not get to see divorce records to gratify spite or promote scandal.32 When, then, do these cases provide newsworthy information for the press and public?
Media lawyers say their case is strongest when the divorce involves an influential businessperson whose finances are of legitimate public concern or a candidate’s fitness for office. But these are some of the very people who try to seal their divorce records in the first place.
California is especially pro-access in divorce proceedings. Two cases that established the state’s standards involved parties with a big civic presence, explained Karlene Goller, former deputy general counsel at the Los Angeles Times.
Burkle v. Burkle, in 2006, involved billionaire grocery-store magnate and political donor Ronald Burkle.33 After finding that the First Amendment right of access to civil proceedings in California extends to divorce proceedings, the court struck down a statute that let parties seal financial records.
Goller said Burkle’s dissolution of assets with his ex-wife were newsworthy because of his influence in Los Angeles and beyond. “He has financial tentacles everywhere,” she said.
A second access victory in California involved the divorce records of Broadcom co-founder Henry Nicholas.34 Around the time of his divorce proceedings, Nicholas was indicted on stock fraud and options backdating charges, and well as on drug charges. (All of the charges were eventually dropped.)
News outlets had already written extensively of Nicholas’ alleged hard drug use and sexual exploits.35 The media needed the divorce records because, as head of a large publicly held company, his legal matters affected shareholders, explained E. Scott Reckard, a Los Angeles Times business reporter who covered the case.
“I don’t think anybody wants to poke around in an ugly divorce just for the sake of poking around in an ugly divorce,” Reckard said. “The issue becomes what elevates any of this stuff to a level of where you want to tell people about it.”
In contrast to the Burkle and Nicholas cases, the media did not fare as well in attempts to get divorce records from pop stars Britney Spears and Kevin Federline, said Wickers, who litigated the access matter. The court only unsealed certain documents, and likely viewed the suit as “prurient interest in the disaster that was K-Fed and Britney Spears’ relationship,” Wickers said.
Another instance when courts are especially willing to open files that were initially sealed is if the character of a candidate for public office could be at issue. This was the case in the 2004 U.S. Senate campaigns of Jack Ryan and Blair Hull.
It also was at issue when Freedom Newspapers sued for the divorce records of Florida state senator Dempsey Barron.36 Barron’s ex-wife claimed he defrauded her by attempting to convey property in Wyoming to his aide, whom he later married.
Barron was involved in a reelection campaign in 1988, but argued that his divorce was a proceeding between private individuals that did not involve the state.37 He reasoned that even if he is a public figure, he should have a right to privacy.38 The media won, and Barron lost his state senate seat that year. Obituaries years later linked Barron’s defeat to his “unusually public divorce fight.”39
While wealthy people or public figures are often the ones that seek closure, Goller said media victories in these cases are an important way to show people that courts are dispensing justice fairly.
“It takes these big cases to make the case law for the average case, and to make sure that judges are aware that these rules of openness apply,” she said.
There are many policy reasons why transparency is especially important in divorce proceedings. One side often has more power and leverage in these cases, so the prospect of publicity can even the playing field.40 Additionally, a single judge, instead of a jury, typically decides these matters, so openness is an important check on the power of the one person.41 Moreover, many of the factors a judge in divorce cases decides, such as the “best interest of the child standard,” have gray areas.42
1 David Mendell, Hull’s ex-wife called him violent man in divorce file, Chi. Trib., Feb. 28, 2004, http://trib.in/1tyrdbe.
2 John Chase & Liam Ford, Ryan file a bombshell, Chi. Trib., June 22, 2004, http://trib.in/1q9CgWW.
3 Dan Collins, Sex Scandal Ends Ryan Senate Bid, Associated Press, June 25, 2004, http://cbsn.ws/XJDP4J.
4 See Jennifer L. Rosato, The Future of Access to the Family Court: Beyond Naming and Blaming, 9 J.L. & Pol’y 149, 150-51 (2000).
5 Melissa F. Brown, Family Court Files: A Treasure Trove for Identity Thieves?, 55 S.C. L. Rev. 777 (2004).
6 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).
7 Nixon v. Warner Commc’ns., Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
8 24 Am. Jur. 2d, Divorce and Separation, § 283 (1998).
10 Mary Mcdevitt Gofen, The Right of Access to Child Custody and Dependency Cases, 62 U. Chi. L. Rev. 857, 867 (1995), citing Joel Prentiss Bishop, 2 Marriage, Divorce, and Separation § 674 at 278 (T.H. Flood, 1891).
11 Id. at 867-68.
12 In re Caswell, 29 A. 259, 259 (R.I. 1893).
15 Nixon v. Warner Commc’ns, Inc., 435 U.S. at 598.
16 Petition of Keene Sentinel, 612 A.2d 911, 915 (N.H. 1992).
17 Id. at 913.
18 Id. at 916.
20 Id. at 917.
21 531 So.2d 113 (Fla. 1988).
22 135 Cal.App.4th 1045 (Cal. Ct. App. 2006).
23 514 A.2d 1374 (Pa. Super. Ct. 1986).
24 Id. at 1380.
25 Id. at 1379.
26 Id. at 1379-80.
27 Iowa Code § 598.8 (2000).
28 Idaho R. Civ. P. 77(b).
29 Va. Code Ann. § 20-106 (1990).
30 Nev. Rev. Stat. Ann. § 125.080 (LexisNexis 2000).
31 Shiles v. News Syndicate Co., 27 N.Y. 2d 9, 19 (N.Y. 1970).
32 435 U.S. 589, 598 (1978).
33 Peter Y. Hong, Jean Guccione & Carla Hall, Court Unseals Burkle Divorce Papers, L.A. Times, May 20, 2006, http://lat.ms/1v2anob.
34 In re the Marriage of Stacey & Henry T. Nicholas, 186 Cal.App.4th 1566 (Cal. Ct. App. 2010).
35 See, e.g., Bethany McLean, Dr. Nicholas and Mr. Hyde, Vanity Fair, Nov. 2008, http://vnty.fr/1mueKPF; Keren Blankfeld & Matthew Miller, Broadcom’s Nicholas After The Fall, Forbes, Oct. 1, 2009, http://onforb.es/1qB62Bd; R. Scott Moxley, Henry Nicholas’ Divorce Is More Secret Than Yours, OC Weekly, July 8, 2010, http://bit.ly/1sgwnGO.
36 Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 115 (Fla. 1988); Donna O’Neal, File Open In Divorce of Barron Supreme Court Ruling Has Wide Implications, Orlando Sentinel, Aug. 26, 1988, http://bit.ly/1twh26Q.
37 Barron, 531 So.2d at 116.
39 Craig Base & Lucy Morgan, Dempsey Barron dead at 79, St. Petersburg Times, July 8, 2001, http://bit.ly/1AIf8TX.
40 W. Thomas McGough, Jr., Public Access to Divorce Proceedings: A Media Lawyer’s Perspective, 17 J. Am. Acad. Matrim. Law. 29, 37-38 (2001).
41 Id. at 38.
42 Mary Mcdevitt Gofen, The Right of Access to Child Custody and Dependency Cases, 62 U. Chi. L. Rev. at 857 (1995).