Opinion
06-27-2016
CROCKER C., Plaintiff, v. ANNE R., Defendant.
Crocker C., Plaintiff Pro Se. Raoul Felder and Partners by Raoul Felder, New York, Attorney for Defendant. Louisa Floyd, Esq., Brooklyn, Attorney for the Children.
Crocker C., Plaintiff Pro Se.
Raoul Felder and Partners by Raoul Felder, New York, Attorney for Defendant.
Louisa Floyd, Esq., Brooklyn, Attorney for the Children.
JEFFREY S. SUNSHINE, J.
Introduction and Background
The Court is called upon to determine whether, under the facts and circumstances presented here, to grant plaintiff's application, over defendant's objection, to introduce the parties' seven (7) year old twins to his girl-friend, who is pregnant with plaintiff's child, before that child is born and whether the issues raised, including defendant's allegation that plaintiff was a patron at a “brothel”, are sufficient to rebut the presumption of an open courtroom based upon plaintiff's application to close the courtroom for oral argument of the application where there was media coverage of a prior written decision issued by the Court in this litigation.
On April 5, 2016, plaintiff-husband, appearing pro se, moved by order to show cause [motion sequence # 14] requesting the following relief: “1) removing the prohibition against the girlfriend of the plaintiff-husband, Professor A., being in the presence of the children.” Plaintiff states in his order to show cause: “On February 13, 2015, this Court issued a Temporary Order on custody, agreed upon consent by the Parties, their Attorneys, and the Attorney for the Children, that contained a provision Number 15 stating that: Neither parent may allow a paramour to be in the presence of the children.' “ He argues that this restriction should be lifted and that the Court should permit the parties' children to be in the presence of his girlfriend, Professor A, because this is “now in the best interests of the children.” He contends that Professor A is now pregnant with his child and is the “expectant mother of a baby girl who will be the new baby sister” to the parties' children. He avers that Professor A is due in late August/early September.
The parties entered into a consent stipulation dated January 15, 2015 which the Court so-ordered whereby plaintiff would have temporary residential custody of the children and defendant would have supervised visitation with the children pending further order of the Court. The parties continued that temporary custody order by consent stipulation dated February 13, 2015 which the Court so-ordered. That order remains in effect as of the date of this decision and order.
Plaintiff contends that it has been about a year and a half since the parties separated, and over a year since the parties entered into the February 13, 2015 consent stipulation whereby they mutually agreed not to introduce any paramours to the children during the ongoing litigation. He contends that the parties' children understand and accept that the parties are divorcing and that, “with the passage of time all parties will desire to move on with their lives.” He also contends that he has been in a “romantic relationship” with Professor A for over a year and that they both intend “to be together” once the divorce proceedings conclude. Plaintiff represents that Professor A is a tenured professor at an area university and he alleges that she is responsible, has “good moral character, and has a strong love of children....” Plaintiff argues that the “pending arrival of a new child provides fresh urgency to the consideration of this matter by the Court.”
Plaintiff argues that during a court appearance on October 28, 2015 the attorney for the children stated on the record that both children have expressed the desire to meet Professor A. He avers that he does not want to introduce Professor A to the children as a “parent-mother figure” but rather to introduce her as a “second positive female role model,” since she will, he argues, be a part of the children's lives after the divorce because they will have a new half-sibling.
He avers that he suggested to defendant that the parties use a parenting coordinator to “harmonize the parenting approach across the two homes” and to address defendant's concerns about the children meeting Professor A but that defendant refused. Plaintiff contends that he consulted both children's therapists for guidance on the best way to share his relationship with Professor A and the news of the pregnancy and impending birth with the children. He alleges that his daughter's psychologist, Ms. O, said that “the prohibition had outlived its usefulness.” He alleges that his son's therapist, Ms. W, stated that “it would be beneficial for the children to have the opportunity to meet Professor A and get to know her in advance of the birth of their new half-sibling.”
In her affirmation of support of plaintiff's motion to lift the prohibition on the children meeting the parties' paramours the attorney for the children argues that “enough time has elapsed” and that her clients have adapted to the knowledge that their parents are getting divorced. The attorney for the children contends that, if the Court grants plaintiff's application, it is unfortunate that Professor A's due date will necessitate introducing the children in an expedited manner but she argues that the need to expedite the introduction should not be a reason to deny plaintiff's requested relief. The attorney for the children recommends that if the Court grants plaintiff's request that the Court order the parties to observe a three (3) month transition period during which “no paramour be allowed to spend the night in the home if my [her] clients are present....” She also recommends that, if it is reported that either child is acting out in a sexual manner, the clause should be reintroduced.
In his affirmation in opposition, dated April 13, 2016, defendant's counsel argues that the motion to lift the prohibition on Professor A should be denied because it is not in the children's best interests. Defendant's counsel argues that the pregnancy is, in effect, an insufficient bases to remove the parties' consent not to introduce paramours to the children during the litigation and that the pregnancy is simply additional evidence of what he believes is plaintiff's “poor judgment” and “general instability....”
Defendant's counsel contends that the plaintiff is wasting the Court's time by bringing “yet another motion.” He alleges that plaintiff filed this motion after the “Court had spent considerable time working out an extensive briefing schedule” the day before (Monday, April 4) and that plaintiff could not have prepared this motion in the “small window of time” between leaving the Court in the afternoon of April 4, 2016 and the afternoon of April 5, 2016 when he filed the application. Defendant's counsel essentially argues that the plaintiff acted in bad faith by “springing” this application on the defendant and the Court when he could have addressed the issue when the parties appeared in Court on April 4, 2016 and that the parties could have included the application when preparing the briefing schedule for the parties' other applications.
Defendant's counsel argues that this Court previously denied plaintiff's oral application to lift the “No Paramour Clause” during a court appearance on October 28, 2015. Defendant's counsel argues that plaintiff's subsequent written application is an attempt for “another bite at the apple” and, therefore, should not be granted.
Defendant's counsel argues that plaintiff has previously violated the parties' No Paramour Clause. In support he references the February 11, 2015 cross-examination of plaintiff in which he admits that Professor A was in his bedroom while the children were present in the marital residence and that he locked his bedroom door while the children were asleep “across the hall.” Defendant's counsel alleges that this reveals plaintiff's poor judgment and “selfish” and “neglectful” behavior.
Defendant's counsel contends that plaintiff's motion is “deficient” because it is “predicated upon speculation” that Professor A is pregnant. He argues that plaintiff has not submitted any proof that Professor A is “actually pregnant—let alone any proof that Ms. A is pregnant with the Plaintiff's unborn child.” At the same time that he argues that there is no proof that Professor A is pregnant he also argues that plaintiff and Professor A purposefully created the pregnancy using “a medically assisted conception....” The purposeful nature of this pregnancy is important, defendant's counsel alleges, because he believes that plaintiff “was a customer at a brothel” in Brooklyn around the date when Professor A became pregnant. In support of his representation, defendant's counsel annexes internet advertisements for a specific address in Brooklyn which shows images of women dressed in lingerie with the following text:
GRAND OPEN [name redacted] Hello, gentlemen—Beautiful & Very Friendly ASIAN GIRLS—Highly Trained Korean & Japanese Therapists—Get 110% of time paid for—The whole body oil Massage—Deep Tissue—Sensual Bodyrubs & Soothing Bodywork—Free Table Shower & HOT TOWEL—THE ONLY PLACE THAT GIVES YOU A BIG SMILE' AT THE END ... [emphasis in original ]
Defendant's counsel alleges that this advertisement is proof that the “spa” is actually a brothel. He argues that plaintiff was a patron at that “brothel”. In support of his argument, defendant's counsel annexed a series of what appear to be security/surveillance photographic images with a time stamp of “12/06/2015 14:05:38” of plaintiff entering a doorway in an unidentified stairwell; similar images that are not time stamped of a lobby area showing plaintiff wearing a bathrobe and an unidentified, fully clothed woman standing a few feet apart; and an image with no time stamp of what may be the same woman wearing what may be shorts and a cropped top walking alone through what appears to be the same lobby area.
The Court further notes that there is no date/time stamp on the other images proffered by defendant nor is there any indication of whether the image depicting the woman in shorts and cropped top was even taken on the same date as the image of the woman and plaintiff standing in the room.
Defendant's counsel avers that December 6, 2015 was a Sunday and he argues, in effect, that plaintiff is hypocritical because he allegedly visited a brothel on a Sunday instead of going to Church when he had previously filed an application seeking to modify the parties' interim parenting time schedule so he could take the children to church on Sundays.
Defendant's counsel contends that Professor A is “the type of person that should be kept away” from the parties' young children because, he alleges, Professor A “seems to view life through a bizarre prism.” In support of his personal assessment of Profession A, he annexes tweets from her public twitter account and a published article that she wrote addressing the topic of “Russian Brides.” Defendant's counsel contends that these exhibits demonstrate that Professor A's online persona is “inappropriate” for young children.
Defendant's counsel also contends that plaintiff relies too much on the parties' children's wishes and that “children this age [7 years old] do not possess the maturity and reasoning to take into account the complexities and inappropriate judgment of what their father is doing.” Defendant's counsel alleges that plaintiff “violated this Court Order's prohibiting the parties from discussing the litigation with the children” and that plaintiff has already shared information about Professor A and the pregnancy with the parties' children.
Defendant's counsel contends that plaintiff's application contains “a considerable amount of hearsay” because it contains quotes allegedly from the parties' children's therapists that are not made in affidavits from the alleged source(s). Defendant's counsel contends that any information alleged from the children's therapists should be disregarded. He also alleges that plaintiff violated the parties' interim stipulation of “joint custody” by consulting the children's therapist without first consulting with the defendant.
Defendant's counsel argues that plaintiff's application to lift the prohibition on introducing paramours to the children is frivolous under 22NYCRR 130.1 and he requests “sanctions, fees and costs for having to defend” it. Defendant does not annex any billing records to his opposition papers where he seeks counsel fees.
Plaintiff contends in his April 15, 2016 reply that defendant's counsel's affirmation in opposition contains a “long list of ad hominem attacks,” some of which do not have a “tangential bearing on the matter at hand, which is whether lifting the prohibition on [the children] being in the presence of Professor A is in the best interests of our [the parties'] children.”
Plaintiff contends that the parties' children are currently in a stable custody arrangement and that, when he is “fortunate enough to have them,” they are his “overwhelming focus.” He contends that, although he and defendant have been able to coordinate on academic issues, defendant is not willing to meet with a parenting coordinator to resolve other parenting issues.
Plaintiff argues that this is not the second time that he has raised this prohibition issue because he did not raise it the first time. He argues that the issue was initially raised by the attorney for the children in an oral application to the court on October 28, 2015. The Court rejected the informal application at that time without prejudice to proper application by way of motion or order to show cause on notice to the parties. Plaintiff denies having conversations with the parties' children regarding this litigation or Professor A. He contends that the children raised the matter in their “confidential discussions” with the attorney for the children because they know where their father is when he is not with them. Plaintiff does not address how he believes the children know he is with Professor A when he is not with them. Additionally, plaintiff denies having any conversation with the parties' children regarding Professor A's pregnancy because he believes it would be “extremely confusing” for them. He also contends that he has not “disparaged” the defendant in front of the parties' children and has, in fact, touted her “unique role as their mother.”
In addressing defendant's counsel's doubt regarding Professor A's pregnancy, plaintiff contends that Professor A's “condition is now physically evident.” He does not dispute that the pregnancy was planned but he avers that “conception was delayed for a period of time until every effort at reaching a settlement in the divorce had been exhausted.” He contends that waiting until a divorce was final before attempting a conception would have been preferable but, he argues, the “luxury of so much time was not available in this case” because this litigation is ongoing and Professor A's increasing age made it impossible to wait.
Plaintiff asserts that Professor A's Twitter feed consists, in his words, of “perfectly innocuous subjects one would expect of a woman professor” and alleges that defendant's counsel took “snippets of words taken from various twitter posts” to annex as exhibits. Plaintiff also argues that the excerpted article that defendant's counsel annexed to his affirmation in an attempt to besmirch Professor A is “satire” and was taken out of context. Plaintiff contends that Professor A's online persona and professional writings are not relevant to the motion, but what is relevant, he argues, is that “Professor A is a warm, responsible woman who loves children ... has patiently abided by the prohibition against meeting the children for over a year, despite knowing they are at the center of my [his] life.”
Plaintiff argues that he consult with the parties' children's psychologists because it “would be imprudent and reckless not to seek the input of these trained professionals” given the gravity of the issue and the sensitivity of the situation. He also contends that his opinions mirror the position of the attorney for the children in her affirmation in support. Additionally, plaintiff agrees with the attorney for the children's suggestion that “a three-month transition period during which the children can get to know Professor A before there are any overnights” be put in place, and that he and defendant should meet and discuss how to share the news of Professor A's pregnancy with the children. The Court notes that there is currently a temporary order of protection in place, on consent, against defendant in favor of plaintiff.
Plaintiff responds to defendant's counsel's allegation that he frequented a brothel by averring that he never saw the “lurid advertisement” presented by counsel and that he found the business searching for “a massage spa in Red Hook using Google....” Plaintiff avers that he “received a deep-tissue massage and nothing more than that” at the spa in question.
Plaintiff contends that his motion cannot be frivolous because when denying the oral application made by the attorney for the children during the court appearance on October 28, 2015 “the Court had directed the parties on the record that if there were to be any modification to the existing Order, that the Court wished to have a written application with statements under oath.”
Plaintiff contends that defendant's wife's counsel “has nothing to say of substance as to how the application relates to the best interests of the children.” He alleges that defendant and her counsel have tried “to drag this case to the tabloids,” but that he has “refused to discuss with the press” alleged incidents during the marriage and related to this litigation to “move on” and to “construct the most positive and nurturing childhood” for the parties' children.
On April 18, 2016, plaintiff moved by order to show cause [motion sequence # 15] requesting the following relief: “1) granting limited closure of the Courtroom during oral argument related to the motion to remove the prohibition on Professor A. being in the presence of the parties' children; 2) granting future limited closure of the courtroom during those sessions in which oral argument, questioning or cross examination on matters of prurient interest could reasonably be expected to result in the disclosure of information and/or allegations that would cause humiliation and psychological and emotional damage to the Parties' children and/or be damaging to the parental relationship if they were to be reported to the press; 3) issuing a non-dissemination order prohibiting either party and/or their legal counsel and/or other agents from disseminating any and all documents related to this case, inclusive of pleadings, affidavits, court transcripts, evidence, and the like, unless authorized by the Court to do so.”
Closing the Courtroom
Plaintiff contends that the Court has discretion to grant limited closure of the Courtroom for matters which, if broadly publicized, would have harmful effects on the parties' children. He argues that, because this case has already been covered by “tabloid media,” allowing an open courtroom during oral argument pertaining to the motion sequence # 14 (plaintiff's application seeking to remove the prohibition on his girlfriend, Professor A) will lead to emotional distress for the parties' children particularly since defendant's counsel chose to include allegations that he patronized a brothel in his opposition affirmation. Plaintiff further contends that allowing an open courtroom in the future during matters of what he deems “prurient” interest would also cause emotional damage to the parties' children, although he argues the consideration of such future closure should be left to the discretion of the presiding Justice.
Plaintiff alleges that media coverage in this case is a consideration because he believes that defendant's counsel uses tabloid media as a form of “extortion” to force settlements during divorce proceedings. Plaintiff alleges that defendant and her counsel made false, “vile allegations” about him frequenting a brothel in defendant's opposition to motion sequence # 14 which, if publicized, would result in the emotional damage of the parties' children. He contends that certain “prurient matters” raised by defendant, such as his alleged patronage of a brothel, were not responsive to his application and, as such, have no relevance to the Court's determination of his application that the children be permitted to meet Professor A. He, in effect, argues that defendant and her counsel chose to raise the allegation that he was a patron at a brothel in their opposition to his application because they want the media to cover this divorce in order to besmirch him in the media. He argues that his position is supported by the fact that the defendant previously spoke to members of the media about this case. He contends that if the courtroom remains open during oral argument of motion sequence # 14 the media will cover it, defendant will speak to the media about it and because of what he believes is inevitable publication of the issues that, ultimately, there will be harm to the parties' children.
Plaintiff further contends that the Court has discretion to issue a Non–Dissemination Order, and that the Court should grant his request because of the “avowed tactics employed” by defendant's counsel, the highly-publicized nature of this case, and the “prurient” issues involved. This Order, plaintiff contends, would serve to protect the parties' children from lasting emotional damage. Plaintiff does not specify what specific relief he requests the Court include in a Non–Dissemination Order if his application were to be granted.
In her affirmation of support of plaintiff's application to close the courtroom, the attorney for the children argues that there is a real threat of potential humiliation of the parties' children if they learn about “their father's frequenting a massage parlor' and other behavior,” citing the “age of electronic information” and the children's “eventual exposure” to this coverage if the media covers this motion sequence. Although she supports plaintiff's application she questions plaintiff's motive behind his application. The attorney for the children points out that plaintiff never acknowledges the potential embarrassment he would himself avoid if the Court closes the courtroom during oral argument on motion sequences # 14.
In his opposition affirmation dated May 16, 2016, defendant's counsel argues that plaintiff does not meet the high burden necessary to defeat the strong presumption favoring public access to the courtroom; namely, defendant's counsel argues that this case is not one of high media scrutiny and that the damage to the parties' children is speculative. Defendant's counsel argues that, had plaintiff actually been concerned with the parties' children's best interests he would have moved for closure of the courtroom at an earlier date when matters that directly impacted the children were discussed (i.e. the emergency custody hearings on October 31, 2014 and on February 11, 2015 which were, in part, based upon plaintiff's allegations of misconduct by defendant allegedly in front of the children). Defendant's counsel alleges that plaintiff was not concerned about closing the courtroom when potentially embarrassing allegations were made against defendant that may have impacted the children and that plaintiff is only moving to close the courtroom now to “hide behind his children” because “his own bad acts have come to light” and he wishes to “protect himself.”
Plaintiff contends in his May 24, 2016 reply that, even though he has not shown that “tabloid coverage” has escalated, the Court should use its “reasonable judgment” to assess the “risks and probabilities of such coverage” and weigh those against public interest in keeping the courtroom open. He contends that his prior encounters with the “tabloid media” related to motion practice caused his desire to protect the parties' children from further media exposure; he compares his refusal to provide comments to the media with he refers to as defendant's “bragging” to the “tabloid media.” Regarding the nature of the emotional trauma to the children, plaintiff asserts that there is no “possible benefit to them from publicizing prurient aspects” of the parties' marriage. He also argues that he is only seeking closure of the court during oral argument of motion sequence # 14 because, he claims, the issues of Professor A's pregnancy and defendant's allegation that he was a patron at a brothel are personal and are not of legitimate public concern.
Non–Dissemination Order
In opposition to plaintiff's April 18, 2016 order to show cause regarding the issuance of a “Non–Dissemination Order,” defendant's counsel claims that plaintiff has no legally sufficient basis to assert this “broad request.” He also claims that a “Non–Dissemination Order” would infringe upon First Amendment rights and would disallow divulgence of pertinent information necessary to future actions.
Plaintiff contends in his May 24, 2016 reply affidavit that this “Non–Dissemination Order” would only force defendant and her counsel to act according to existing statute and that it would not prevent defendant from bringing future “criminal and plenary civil actions.”
The attorney for the children took no position on plaintiff's application for a “Non–Dissemination Order.”
Discussion
Presumption of Open Courtroom
The strong presumption of public access to the Courtroom derives from the First Amendment to the United States Constitution, that “Congress shall make no law ... abridging the freedom of speech; or of the press ...” (U.S. Const amend. I, full text). The Supreme Court of the United States has held that, “in guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 [1980] ). Public trials are an indispensable part of society, in that they promote the ascertainment of truth, the education of the public, and confidence in the judicial system (see generally Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 [1982] holding that public access “permits the public to participate in and serve as a check upon the judicial process-an essential component of our structure of self-government” at 606).
NY Judiciary Law § 4 mirrors the United States and New York State constitutional presumption of an open court policy, but indicates that in certain proceedings, including divorce proceedings, “the court may, in its discretion, exclude therefrom all persons who are not directly therein, excepting jurors, witnesses and officers of the court.” (N.Y. JUD § 4 ; see also DRL 235(2) ).
Revictimization
The Appellate Division, Second Department has held that the general welfare of children is a public interest and, under certain facts and circumstances, it is proper for the Court to close a courtroom if not doing so would “revictimize” a child (see In the Matter of Katherine B., 189 A.D.2d 443, 451, 596 N.Y.S.2d 847 [2 Dept.1993] ). New York courts have employed a balancing test when considering whether to close a courtroom where the presiding judge weighs the constitutional and statutory right of public access to the courtroom against the State's interest in shielding children from the potential adverse effects of public testimony (see Matter of Katherine B., 189 A.D.2d, supra, at 451, 596 N.Y.S.2d, supra, at 852 [2 Dept.1993]; S.B. v. U.B., 38 Misc.3d 487, 493 [2012] ; P.B. v. C.C., 223 A.D.2d 294, 296, 647 N.Y.S.2d 732 [1 Dept.1996] ; Anonymous v. Anonymous, 263 A.D.2d 341, 343, 705 N.Y.S.2d 339 [1 Dept.2000] ).
The facts in Katherine B. surrounded a child protective proceeding involving a 10–year–old girl who was allegedly kidnapped by an adult family friend, imprisoned in an underground dungeon in his home where he allegedly abused her (189 A.D.2d 443, 451, 596 N.Y.S .2d 847 [2 Dept.1993] ). The Appellate Division, Second Department reversed the Family Court decision not to close the courtroom because it found that not closing the courtroom would revictimize the child where the record established that the child, the alleged victim of abuse, had already experienced bullying by other children because of on-going television coverage of the case and where not closing the courtroom would “[reveal] ... intimate facts of her life [emphasis added ]” (Katherine B., at 447).
Unlike the facts presented in Katherine B. the issues in motion sequence # 14 do not involve any allegations directly involving the children. The allegations in motion sequence # 14, both those raised by plaintiff and those raised by defendant, involve activities taking place outside the presence of the children. There is no allegation that the children were already directly victimized by the issues pending in that motion and, as such, there can be no claim that they would be “re-victimized” if the media covered the oral argument. Additionally, the issues involved in motion sequence # 14 do not involve “intimate facts” about the children's lives but rather alleged facts about plaintiff's life.
In P.B. v. C.C., the Appellate Division, First Department held that closing the courtroom was in the best interests of the children because there were detailed affidavits from psychologists, a tutor, a principal, etc. that these children had “already been subjected to derision and embarrassment by their peers (id. at 297).” Here, there is no allegation or evidence offered by plaintiff or the attorney for the children that media coverage has affected the parties' children or that they have been “bullied” as a result of media coverage. The only argument raised related to potential harm is raised by the attorney for the children who argues that there is the potential in this “internet age” that if the media covers oral argument on motion sequence # 14 that the children may one day learn about the allegations and it may cause them embarrassment in the future. The Appellate Division, First Department has held that the “possibility of some unspecified future harm does not constitute a compelling interest justifying closure (Anonymous v. Anonymous, 263 A.D.2d 341, 343, 705 N.Y.S.2d 339 [1 Dept.2000] ).” Here, like in Anonymous, any future harm to the children is speculative. If the Court were to close the courtroom every time that divorcing parents raised allegations of misconduct, lack of insightful parenting judgment or other potentially embarrassing allegations against one another the Court may be faced with closing the courtroom in many, if not most, contentious custody disputes. The Court finds that under the facts and circumstances presented here there is no risk of “revictimization” of the children.
Media Scrutiny
Plaintiff claims that this litigation has generated “an unusual level of tabloid media” and, relying on the Appellate Division, First Department decision in P.B. v. C.C., argues that this media coverage necessitates closing the courtroom (223 A.D.2d 294, 296, 647 N.Y.S.2d 732 [1 Dept.1996] ). The facts in P.B. v. C.C. involved a custody proceeding where one of the children was a “famous child actor” and there was evidence of general “high media scrutiny” of the litigation because of the notoriety of the parties involved that predated and was independent of the litigation. Plaintiff contends that the notoriety that this proceeding has already attained due to media coverage equivalent to that surrounding P.B. v. CC. because media reports were issued about a prior decision in this case involving allegations against plaintiff.
Defendant's counsel distinguishes this case from P.B. v. C.C. and argues that the facts in this litigation are similar to those presented in this Court's prior decision to leave the courtroom open in S.B. v. U.B., a custody proceeding in which there was no evidence of prior media scrutiny (38 Misc.3d 487, 493 [2012] ).
Here, unlike the facts presented in P.B. v. C.C., where one of the children was famous before the action was commenced, plaintiff does not allege that either of the parties garnered media attention prior to these divorce proceedings or is a celebrity who is surrounded by ongoing, general media attention. The Court notes that the isolated prior media attention in this litigation apparently resulted from the novel issue presented by the Court finding an adverse inference against plaintiff on the issue of whether he installed spyware on the defendant's iPhone before he commenced this divorce and then used it to monitor her confidential communications and did not result because of the celebrity or notoriety of the parties. Plaintiff does not allege that there has been any further media attention related to this litigation after the reporting on that decision in September 2015. This limited incident of media attention does not rise to the level of “high media scrutiny.”
There is no concrete evidence that the media will continue to cover these proceedings. Unlike the facts presented in Anonymous v. Anonymous, 263 A.D.2d 494, no member of the media has intervened in this action seeking court files. This Court finds that while one prior decision in this divorce proceeding garnered some media attention there has not been widespread media interest in this litigation generally.
Private Interest
Plaintiff contends that the courtroom should be closed for argument on motion sequences # 14 because further media coverage is inevitable due to defendant's counsel's alleged use of the “threat of tabloid coverage as a means of extortion.”
Defendant's counsel alleges that plaintiff seeks to close the courtroom to protect his reputation not to protect the parties' children from embarrassment. Defendant's counsel alleges in his affirmation in opposition to plaintiff's application to introduce the children to Professor A and the pregnancy that plaintiff was a patron at a brothel. Later, in opposing plaintiff's subsequent application to close the courtroom, defendant's counsel argues that plaintiff's “real” motive in closing the courtroom is not to protect the children but to shield himself from any embarrassment that may come if the allegation that he was a patron at a brothel became public knowledge because of media coverage.
The record establishes that plaintiff did not file his application seeking to close the courtroom for oral argument related to motion sequence # 14 until after defendant's counsel alleged in his opposition affirmation that plaintiff was a patron at a “brothel.”
The value of defendant's counsel's litigation tactic of raising the legally unresponsive allegation that plaintiff was a patron at a brothel in his opposition affirmation to plaintiff's application related to Professor A is questionable. Assuming, arguendo, that defendant's counsel's allegation is accurate, it is unclear to the Court how that allegation would have any legal relevance to this Court's determination of what is in the best interests of these parties' children as it relates to Professor A's pregnancy and how the children should learn about the imminent birth of their new half-sibling.
Initially, the Court fails to see how defendant's allegation about the brothel is responsive in any legally relevant manner to plaintiff's application related to court permission to introduce the children to Professor A. It is well-established that affirmative relief should be sought by motion or order to show cause and not in opposition papers (CPLR 2211 ; see New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N.Y.S.2d 246 [2 Dept., 2007] ). Inasmuch as defendant did not move by cross-motion seeking affirmative relief and inasmuch as the brothel allegation is not related to the question of the children learning of the impending arrival of their new half-siblings it is essentially a “red herring” allegation. Had defendant, who is represented by counsel, believed that the “brothel” allegation necessitated some form of court intervention she could have included it as part of a cross-motion seeking affirmative relief but she did not do so. The issue of any allegation related to a “brothel” is, therefore, not properly before the Court. The Court notes that this is not the first time defendant has engaged in a form of “ad hominem ” attack that is not legally relevant to the issues pending before the Court. The legal issue that is before the Court related to motion sequence # 14 is whether it is in the best interests of these parties' children to meet Professor A due to the impending birth of their new half-sibling.
Notwithstanding the irrelevance of the “brothel” allegation to the specific, limited issue presented in motion sequences # 14, the Court finds that plaintiff's argument related to an alleged form of “media extortion” tactic by defendant is a private, personal interest of plaintiff and is not legally sufficient to rebut the presumption of an open courtroom. Court must always strive to act in a matter that preserves the public's confidence of an open and transparent judicial system in a free, democratic society and utilize the power to close the courtroom sparingly and under limited circumstances.
Non–Dissemination Order
Plaintiff requests that the Court issue a Non–Dissemination Order in this case. In Anonymous v. Anonymous, 263 A.D.2d 494, 495 [1999], the Appellate Division, Second Department found that “an overriding concern to ensure that one party to the divorce settlement negotiations did not use the otherwise protected scurrilous material extensively referred to and repeated in the sealed documents to gratify private spite or force a desired settlement by threat of disclosure.” In Anonymous, a newspaper publisher intervened in the action seeking to obtain sealed records (supra ). In the case at bar, plaintiff alleges that defendant's counsel uses the media as a form of tactical “extortion”; however, this allegation is too speculative under the facts presented here to justify issuing a Non–Dissemination Order. Based on the application before the Court at this time plaintiff's application for a non-dissemination order is denied. The Court would hope that in adjudicating a custody matter the parties would be cognizant that the trier of facts will hear testimony on the issues, inter alia, of whether a parent is acting in the best interests of the children. It is well-established in New York that in deciding matters of custody and visitation there is not only one factor that a court considers but the totality of the circumstances (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658 [1982] ; see also Maraj v. Gordon, 102 AD3d 698, 957 N.Y.S.2d 717 [2 Dept.,2013] ). Certainly parents retain their First Amendment rights during a custody dispute; however, a parent's choice to, in effect, actively involve children of the marriage in the litigation by revealing the parties' identities to the media where the Court attempted to protect the children by using initials for the caption and redacting identifying names in a sensitive written decision could reflect that parent's disregard for the impact that such media exposure could have on the children either immediately or in the future. If a Court found that a parent lacked insight into how their choices and actions impacted the children it could be a factor the Court could consider in a custody determination.
Professor A [motion sequences # 14]
There is no absolute right to oral argument (22 NYRCC 202.8; see Niagara Venture v. Niagara Falls Urban Renewal, 56 AD3d 1150, 867 N.Y.S.2d 296 [4 Dept.,2008] ; see also Forest Hills Gardens Corporation v. Kamp, 171 Misc.2d 334, 659 N.Y.S.2d 690 [Appellate Term. 2 Dept,1997] ). In as much as motion sequence # 14 is fully briefed the Court hereby finds that there will be no oral argument on motion sequence # 14 and the Court shall decide motion sequence # 14 upon the fully submitted papers. This Court finds that it is, given the short time-frame before the anticipated due date of late August/early September, in the best interest of the children that the issue of plaintiff's application to introduce the children to Professor A and the impending birth of their half-sibling not be further delayed by the need to schedule oral argument which would require putting off a determination on this issue some weeks. This unnecessary delay for oral argument is not in the children's best interest given the nature of the relief sought.
The parties entered into the February 13, 2015 stipulation whereby they mutually agreed not to introduce paramours to the children shortly after the plaintiff commenced this divorce action. At that time, defendant had recently left the marital residence after plaintiff filed an emergency application alleging that defendant was abusing alcohol in the presence of the children. The Court notes that this litigation was adjourned on defendant's application and on consent of plaintiff several times.
That was a time of upheaval in the lives of the parties' young children, who were approximately six (6) years old at the time, and it is clear that the parties agreement related to paramours was designed to avoid any further unnecessary unpredictability for these children. The Court also notes that at that time there were cross-allegations by the parties alleged that the other was involved in unstable romantic attachments. Based upon the facts and circumstances existing at that time it was in the best interests of the children not to experience any further uncertainty that may have come from meeting their parents' paramours because the children were already being required to understand and to live in a world where their parents no longer lived together in an intact family unit.
Based upon the facts and circumstances presented at this time it is clear that the best interest of the children have changed (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658 [1982] ). At this time, the parties have lived separately for more than a year and the attorney for the children represents that they understand that their parents are divorcing. It is also clear that the children will have a new half-sibling imminently—plaintiff represents that Professor A is due to deliver in approximately two (2) months.
Similarly to how the restriction on introducing paramours was in the best interests of the children because it was to buffer them from unpredictability and to smooth the transition as the parties moved through this divorce it is clearly now in the best interests of the children to buffer them from a future where they only learn of a new half-sibling after that child is born.
While defendant may be displeased that plaintiff concedes that he “planned” and purposefully father a child with another person during this divorce litigation, the Court must first and foremost consider what is in the best interests of the children (N.Y. Constitution, art. XVII (3); see Matter of Sayeh R., 91 N.Y.2d 306, 670 N.Y.S.2d 377 [1997] (“[i]n its role as parens patriae, New York is under a powerful duty to protect its domiciliaries from harm”). Here, plaintiff has temporary residential custody of the children pursuant to the parties' consent stipulation dated January 15, 2015 and continued by stipulation dated February 13, 2015. It is inevitable that the children will learn about their new half-sibling. To bar them from learning about this half-sibling until some arbitrary time after this litigation concludes, as defendant proposes, would almost certainly create a more disruptive situation for the children than if they are told about the pregnancy in a time-frame where they can process the information with, hopefully, the help of both their parents and the mental health professionals who are currently assisting them through this process before the child is born. The Court reserves for future determination the efficacy of plaintiff's act in purposefully planning to father a child outside of the marriage during the pendency of the divorce action he commenced and what effect that act may have on the well-being of the children of this marriage during this contentious divorce.
The Court finds that it is in the best interests of the children that they meet Professor A and learn about the pregnancy and the impending birth of their new half-sibling before the child is born if possible. The Court hereby grants plaintiff's application to introduce the children to Professor A and to share the information about the pregnancy; however, prior to introducing the children to Professor the plaintiff shall schedule a meeting(s) with the children's current respective mental health professionals to obtain suggestions on how to formulate and structure the logistics of the best way to introduce the children to Professor A and the circumstances presented. The parties shall arrange for these meetings to take place at an agreed upon time. Defendant shall cooperate with selecting the meeting date and shall not unreasonably delay the meeting date. Defendant shall have the right to be present and to participate in the discussion so that the logistics of how the children will meet Professor A are clear to both parties.
This Court finds that it is appropriate to grant the attorney for the children's application for an order prohibiting the parties from sharing accommodations with any paramour while the children are present for ninety (90) days from the time the children are introduced to the paramour.
Defendant's Application for Sanctions and Counsel Fees
It is appropriate to seek affirmative relief by the appropriate Notice of Motion, Order to Show Cause or Cross–Motion and cannot be made in opposition papers alone (CPLR 2211 ; see New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N.Y.S.2d 246 [2 Dept., 2007] ). Here, the defendant sought sanctions in her affidavit in opposition to the plaintiff's Order to Show Cause. The defendant's application for sanctions is denied without prejudice. Defendant's counsel also sought an award of counsel fees in his affirmation in opposition and that application is also denied without prejudice for the same reason. Additionally, defendant's counsel's application for counsel fees does not comply with 22 NYCRR202.16(k) and is therefore procedurally defective on that basis.
Conclusion
The relief requested by plaintiff in motion sequence # 14 is granted.
The relief requested by plaintiff in motion sequence # 15 is denied.
This shall constitute the decision and order of this Court.