Academic journal article Communications and the Law

"Open to the Public": The Effect of Presumptive Public Access to New York State's Family Courts

Academic journal article Communications and the Law

"Open to the Public": The Effect of Presumptive Public Access to New York State's Family Courts

Article excerpt


Behind the black marble facade looming over Lafayette Street in Lower Manhattan, and in courthouses across the state, New York's Family Courts hear matters involving the most intimate details of private lives--e.g., whether a baby has been abused or neglected, whether a parent is fit, whether a young boy or girl has been delinquent. In these matters, state power collides with normally private family interests in a way that occurs nowhere else in the court system. The proceedings are at once intensely personal and yet fundamental to the public's interests in equal justice and the efficient and humane administration of vast bureaucracies charged with protecting child welfare and ensuring juvenile justice. In this clash of personal and public interests, our society's commitment to open and accessible public institutions has been sorely tested. Yet, in New York at least, tremendous progress has occurred in recent years, ensuring that the Family Courts are open to public access and scrutiny.

Two years ago, after the media was barred from Family Court proceedings concerning the kidnaping and torture of Katie Bears, the abuse and death of Eliza Izquierdo and the custody right over child movie star Macauley Culkin, New York State's Chief Judge, Judith S. Kaye, and Chief Administrative Judge Jonathan Lippman promulgated a new rule governing access to Family Court proceedings. The new rule, 22 NYCRR [sections] 205.4, was announced on June 18, 1997, became effective on September 2, 1997, and has, for the first time on a system-wide basis, codified and ensured the Federal constitutional right of public access to court proceedings within the Family Courts of New York State.

The effect of this new rule has been immediate, salutary and apparently universal throughout the court system, changing the Family Courts of this State in three fundamental respects.

First, as a result of the new rule, the practice of New York State's Family Courts with respect to public access to proceedings has become aligned with the Federal constitutional requirements prescribed by the United States Supreme Court in its press access decisions over the past two decades. Prior to Judge Kaye's promulgation of the new rule, New York's Family Court Judges, and the appellate panels that review their decisions, repeatedly entered court-sealing orders that this Committee and many of the media organizations its members represent believe violated the governing Federal constitutional precepts.

Second, at a time when the problems of New York City's child welfare system have been the focus of widespread public, governmental and judicial concern, the new access rule for the Family Courts has facilitated press and public scrutiny of the role of the Family Courts concerning the foster care and juvenile justice issues that have captured such widespread civic attention and concern. While the effect of public scrutiny of the Family Courts eludes tangible measurement, if "sunlight is the best disinfectant," as Justice Brandeis instructed, then the new access rule has helped reform the administration of child welfare and juvenile justice law in New York.

Third, the new rule has substantially streamlined the judicial process with respect to access issues in the Family Courts. Before the new rule was promulgated, the Family Courts and the Appellate Divisions that review their decisions were frequently saddled with costly and time-consuming Family Court access litigation. The multiplicity of decisions that ensued left parties to Family Court proceedings, Family Court Judges and the media without clear and consistent guidance about when public access would or would not be permitted, and the terms on which it would be granted or restricted. In contrast, under the new rule, public access to Family Court proceedings has never been denied in any reported matter, the implementation of media access to Family Court proceedings has been conducted with nearly no controversy, and there have been no reported appeals from Family Court access decisions. …

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