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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, April 26, 2015

Privacy and the Family Court: Sealing the Files

Oakland Family Court
Judge Joan E. Young
Over the years, our law firm has supported a privacy policy developed by veteran Oakland County Family Court Judge Joan E. Young. This policy involves restricting sensitive private information, usually taking the form of exhibits attached to a motion, to a "bench memorandum" that only gets filed with the judge; not with the clerk of the court.

Normally, when an attorney files a motion in family court, just like in any adversarial proceeding, all motions, briefs and attachments are included in the court record which is available to the public. Members of the public can then obtain [for a fee] any of the documents filed with the Court.  These documents are even available through the Internet via the Oakland County Court Explorer.

Like other adversarial proceedings, motions filed in family court result from conflicts that are irresolvable through informal means. In family court, motions can get particularly viscous and personal, depending on the skills, experience and decorum of the attorneys involved.

Recently, there has been some discussion among local family law professionals about sealing family court files from the public and making them available only to the parties and their respective counsel. A private divorce filing system was adopted in New York which now serves as a model for other states.

There are several examples of normally private matters that are subjected to the public eye in a family court proceeding when lawyers, paid to advance their client's agenda, are less than discreet:
  • Income and employment information;
  • Valuation and other disclosures regarding assets;
  • Business records;
  • Estate planning information;
  • Embarrassing conduct detailed in an affidavit or other sworn testimony;
  • Police reports and witness statements in unrelated cases;
  • Therapy or counseling information;
  • Children's academic records;
  • Statements about children's conduct;
  • Medical or mental health information about the parties or the children;
  • Sensitive information about other family members.
The list could be much longer given the diversity of situations presented to the family courts on a daily basis.

A motion is a vehicle in litigation whereby a specific legal issue is decided in the case. Attorneys routinely attach all manner of documentation to a motion in support of their legal position and factual assertions.

Once these documents are attached to a motion, they become part of the record in the case. This is critical because, if one party appeals the lower court's decision, only the documents contained in the record can be considered on appeal.

Therefore, sealing a family court file may create problems relative to appellate review. Also, sealed records may make abusive or unreasonable conduct more difficult to prevent unless the malfeasor knows he faces exposure.

The state courts in New York work around this by enumerating a comprehensive list of professionals in the procedural rules that have access to the family court records; they include those needing the documents for an appeal, and those involved in the prosecution of a distinct but related criminal matter.

Judge Young's policy on the privacy of family court filings has evolved over the years. At first, she made it known among family court practitioners that we should be attaching exhibits to the judge's copy of a filing only.

Over the years, however, she has come to adopt an "all or nothing" approach given the difficulty in arriving at a list of items, even a comprehensive one, that are to be afforded privacy.

At present, the bottom line is that disclosure of sensitive information is up to the discretion, skill and experience of the lawyer. If a lawyer reacts emotionally to an emotional issue, attaching emails, screen shots, pay-stubs, mental health assessments, or affidavits to documents that are filed in court, then this sensitive information becomes part of the permanent record in the case, subject to public scrutiny.

Unless or until the law changes, parties facing such public exposure can only avail themselves of the court rule that contemplates sealing a court file. In cases where a party seeks to seal an otherwise public record, the matter rests with the discretion of the family court judge assigned to the case.

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Blogger max den said...

Amazing post.

May 12, 2015 at 8:25 AM 

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