A Re-examination of the Protection of Children's Best Interests in Public Custody Proceedings
| Publication year | 2015 |
| Pages | 0012 |
by John C. Mayoue and Renee Neary
Society's appetite for scandal is arguably no greater today than in the 1830's, when people clamored for gossip from the penny press. Today, scandal is oftentimes channeled through electronic transmission. The Internet has become a powerful, yet indiscriminate, tool capable of irreparably harming many persons, including those who are not the intended recipients. In the context of child custody disputes, which are not exempt from the general presumption of open access to courts, the Internet and most particularly, the proliferation of social media, place children at increased risk of substantial harm through the "reporting" of these often acrimonious disputes. This article examines the history of open access to the courts, as well as statutory and common law limitations to this presumptive right, and urges re-examination of these premises in the best interests of children who are the subject of public custody proceedings.
Constitutional and Common Law Dictate a Presumption of Openness
American jurisprudence firmly recognizes the public's right to attend civil proceedings. Our Constitution's First Amendment implicitly affirms both the media's and the general public's presumptive right to attend trials.[1] Attendant is the right to listen, long viewed as a corollary to the First Amendment's freedom of speech, or the right to "receive information and ideas."[2] Indeed, the First Amendment "goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw."[3]
The U.S. Supreme Court's watershed decision in Richmond Newspapers, Inc. v. Virginia[4] succinctly set forth the public policy reasons underlying the presumption of openness in court proceedings. In Richmond Newspapers, the Court determined that open access operates both as an assurance of the Court's integrity and as a check on judicial abuse of power by "satisfy[ing] the appearance of justice."[5] The Court noted that American courts "had long been presumptively open," thus giving assurance that "the proceedings were conducted fairly to all concerned," and "discourag[ing] . . . decisions based on secret bias or partiality."[6] Open courtrooms also hold parties and witnesses accountable in the quality of their testimony, insofar as transparency discourages perjury and other testimonial misconduct.[7] Additional compelling reasons for openness include a "significant community therapeutic value" as well as the public's right to be educated in the functioning of its government.[8] Although the Court in Richmond Newspapers addressed open access in the context of criminal proceedings, a footnote to a concurring opinion also acknowledged, from a historical standpoint, the presumption of openness in civil cases.[9]Lower federal courts have consistently upheld the public's presumptive right to attend, and the media's right to report on, civil trials,[10] as well as a corresponding presumptive entitlement to court records.[11]
Justice Brennan's concurrence in Richmond Newspapers made clear, however, that "because the stretch of this protection is theoretically endless, it must be invoked with discrimination and temperance."[12] Noting that "'[there] are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow, . . . [a]n assertion of the prerogative to gather information must accordingly be assayed by considering the information sought and the opposing interests invaded.'"[13]Four years after Richmond Newspapers, the Supreme Court found that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."[14]
The laws of the state of Georgia are in accord.[15]As recently as August of 2013, the Georgia Judicial Qualifications Commission confirmed the presumption of openness in the courtroom: "Absent specific legal authority, public access to court proceedings should be unfettered and unobstructed. Georgia's courtrooms shall be open to the public unless otherwise provided by law."[16] Child custody proceedings are open to the public.
Limitations on the Right to Access
Georgia has long recognized certain exceptions to the open access presumption in other family law matters, however. For example, hearings on adoption petitions are always held in chambers,[17] and adoption records are not open to the public.[18] Such records are not subject to future unsealing except under exceptional circumstances. Furthermore, paternity actions in which either the putative father or biological mother seek proof of paternity may be closed upon either party's motion.[19]
Juvenile proceedings in Georgia also have been historically closed. Notwithstanding our public policy reasons for presumptive closure in juvenile proceedings, however, courts have long recognized that certain offenses are so serious that a child, depending upon his or her age and consciousness of guilt, must be subject to adult consequences.[20] The magnitude of certain crimes gives rise to the public's need for accountability and in some circumstances, the victim's need as well. In these situations, the same policy rationales supporting an open courtroom in criminal cases justify an exception to the presumption that juvenile proceedings be closed.
In Georgia, exceptions to presumptive closure in juvenile proceedings include allegations of certain crimes that would be a felony if committed by an adult, delinquency hearings in which the juvenile has previously been adjudicated delinquent (subject to certain exceptions), child support, legitimation, any dispositional hearing involving such proceedings and, subject to certain further exceptions, deprivation proceedings.[21]The best interest standard also permits the court to "refuse to admit a person to a hearing in any proceeding upon making a finding . . . that the person's presence at the hearing would . . . [b]e detrimental to the best interests of a child who is a party to the proceeding."[22] In juvenile legitimation actions in which paternity is not an issue or when a child is born outside of marriage, those proceedings are explicitly open to the general public as an exception to the general presumption that juvenile court proceedings are closed.[23] Also, although rarely invoked and not directed specifically for the benefit of children, Georgia civil practice permits a presiding judge to clear the courtroom of "all or any portion of the audience" if the evidence presented is "vulgar and obscene or relates to improper sexual acts and tends to debauch the morals of the young."[24]
Conversely, there also has been a trend in juvenile law to open courtrooms in proceedings in which the juvenile is not the alleged offender, but rather the victim. The juvenile court also exercises its jurisdiction over children who have been failed by a parent, a caretaker or the state itself. Those hearings historically have also been presumptively closed; however, proponents for open access in recent years have argued that veiled proceedings—with no oversight by the public to act as a check to judicial abuse and/or systemic neglect by the foster care system or other state agencies—are a threat to the very children whom the closed system tries to protect. There has been almost unanimous support in academic circles, including in Georgia,[25] for greater transparency in juvenile courts as public awareness of both child abuse/neglect and juvenile crime has increased, with a resultant demand for accountability.[26]Open access advocates tend to emphasize the importance of public discourse and to discount the child's right to privacy.[27] Even the most ardent supporters of open access in juvenile proceedings concede, however, that sometimes the public's intent lies less with education and reform than it does with the "name and blame game" of identifying the victims, perpetrators and details of an event that appeals to the public's appetite for scandal.[28] The minority view rests primarily upon concerns that open proceedings in most situations do nothing to improve public understanding of abuses but rather serve only to re-victimize the subject children.[29]
Georgia child custody proceedings are open to the public and conducted like other civil trials. The courts provide limited protection in cases involving guardians ad litem (GAL) by requiring that the GAL report only be released to the court, the parties and counsel, and that it not be filed in the public record.[30] In considering whether it will permit broadcasting of all or a portion of a proceeding, the trial courts are to consider "[a]ny special circumstances of the parties, victims, witnesses, or other participants such as the need to protect children or factors involving the safety of participants in the judicial proceeding."[31] On rare occasions, the trial court may invoke Uniform Superior Court Rule 21.1 to limit other portions of the record.[32]
Children's Protection in Georgia Custody Cases
Custody trials tend to involve multiple lay and expert witnesses as well as extensive documentary exhibits. Prior to a final trial, the court may hold a temporary hearing on custody where testimony in the form of lay and expert affidavits sent 24 hours in advance of the hearing may be considered.[33] The court may also appoint a guardian ad litem, psychological evaluator or custodial evaluator to investigate, test and render a report to the court. The guardian ad litem is given access to the children's records, including those from schools, governmental agencies and health providers. Upon voluntary release, the...
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