Opinion
07-03-2024
M.D.S., Plaintiff, v. E.W., Defendant.
Counsel for Plainitff: Aronson Mayefsky & Sloan LLP By: Alan E. Mayefsky, Esq. & Jennifer Lombardo, Esq. Defendant Pro Se Counsel for the Children: Law Offices of Lauren M. Friend By: Lauren M. Friend, Esq.
Unpublished Opinion
Counsel for Plainitff:
Aronson Mayefsky & Sloan LLP
By: Alan E. Mayefsky, Esq. & Jennifer Lombardo, Esq.
Defendant Pro Se
Counsel for the Children:
Law Offices of Lauren M. Friend
By: Lauren M. Friend, Esq.
Ariel D. Chesler, J.
The issue presented in this motion sequence is that the children's best interests are on a collision course with the First Amendment rights of the Mother. This Court holds that, under the circumstances presented here, the best interests of the children must eclipse the Mother's First Amendment protections.
BACKGROUND
The parties are currently married and engaged in a contested matrimonial action. The parties share two children in common, namely, D.S. and M.S. (collectively referred to hereinafter as: the Children).
The children currently reside with Defendant, E.W. (hereinafter: the Mother) . Plaintiff, M.D.S. (hereinafter: the Father), currently resides outside of the marital residence. Notable to this case is that the Father is the son of the critically acclaimed and well-known author (hereinafter: the Grandfather), who is best known for his book series for children. The grandfather is relevant to the instant proceeding because the Mother has elected to, rather than redress her issues with the Father in the court of law, to take to the internet to do so. In order to gain traction for her airing of grievances online, the Mother named her website using the Grandfather's pen-name. The homepage of the website features a photo of the parties' Children and their grandfather.
The Mother has elected to proceed in this matter pro se. The Court has taken great efforts to advise the Mother throughout this proceeding that she should retain counsel and has afforded her months to do so. She remains committed to proceeding pro se - a decision this Court must and does respect. However, "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive [the opposing party] of the same rights enjoyed by [other litigants]." (Roundtree v Singh, 143 A.D.2d 995, 996 [2d Dep't 1988] citing Morgan v Sylveser, 125 F.Supp. 308, 388 [S.D.NY 1954] aff'd 220 F.2d 758, cert denied 350 U.S. 867, reh denied 350 U.S. 919). Allowing the Mother's conduct to continue with impunity would afford her a "greater right than any other litigant."
Within this website, the Mother has brought up nearly every issue in the parties' divorce. From financial issues to custody, the Mother has "left no stone unturned." The Court has advised the Mother ad naseum not only that this website is wholly inappropriate and contrary to the best interests of the Children, but further that her financial and custody concerns can best be raised before this Court. Despite these multiple warnings, the Mother has elected to proceed with her internet onslaught.
The Mother's attempts to paint the Children's paternal family in a poor light did not end with the internet as the Mother admitted, in an e-mail to this Court, that she already went to the media with this information.
This conduct is of immense concern to this Court because it presents a direct threat to the Children's continued bond with their paternal family, specifically, their Father and Grandfather. This conduct is of further concern because the parties' child, D.S., is ten years old and children around his age not only have access to the internet but are exposed to D.S. 's grandfather's literature. The threat of D.S. 's peers, or D.S., coming across this website is not remote. Indeed, the Mother's continued posting on the site (which continued even after court warning and order to the contrary) and her decision to take this information to the media further increases the chance that both D.S. and M.S. will be exposed to these damaging allegations.
In light of the hostile nature of the litigation and the clear on-going threat to the Children's best interests by the Mother's ill-advised "vigilante justice", even after Court warning, this Court appointed an the attorney for the Children (hereinafter: the AFC).
Shortly after her appointment, the AFC was made aware of the website at-issue and likewise made note that the Mother was making active efforts to complicate the AFC's attorney-client relationship with the Children. In response to this, the AFC moved by emergency order to show cause seeking the immediate and final relief of, inter alia, ordering the Mother to take down the website; and for neither parent to disparage the other in the presence of the Children or online in any manner nor interfere with the Children's attorney-client relationship. This Court conformed and granted the interim relief of (i) directing the Mother to immediately take down all content that reflects or references claims or potential evidence in this proceeding from the website; (ii) prohibiting the Mother from posting, publishing or sharing publicly any blog posts, posts, photographs, videos, audio recordings, text messages, notes, and the like of Plaintiff, Subject Children, paternal relatives, or any other individual or communication related to the claims in this pending litigation or any potential evidence in this action on any social media, websites, newspapers or publications; (iii) directing that neither parent, in the presence of the Children, or online, disparage the other parent or the relatives or partners of the other parent, discuss litigation or litigation-involved professionals, or discuss the Children's relationship or communications with their attorney; and (iv) directing that neither party shall discuss with or interrogate the Children regarding the content of their interviews with their attorney.
After the Order was conformed on June 21, 2024, the Mother, despite being ordered to the contrary, posted more information on the website concerning the litigation under a new post. Within that post alone, the Mother discussed the AFC's Order to show cause, accused the AFC of aligning with the Father to award him sole custody (a request he has not made before this Court), and questioned this Court's authority. Most troublesome, at multiple points in this post, the Mother quoted directly from the AFC's motion papers. She has done this in other parts of the website too, having previously posted a screenshot from the pleadings (specifically, Plaintiff's Complaint's prayers for relief) in this matter under another post.
The court held an emergency appearance on this issue on June 24, 2024. At the June 24, 2024, appearance, the Mother remained stalwart in her commitment to continuing her use of the website to air her grievances with this litigation, the Father, the Father's family, and the AFC. During the appearance, the AFC expressed that she was hopeful the appearance and order would temper the Mother's behavior. In response the Mother made clear she would not temper her behavior, stating, "You should file for contempt." This Court thereafter set forth the next appearance to be an in-person appearance on the AFC's emergency application on July 1, 2024. In response to this, the Mother stated, "I'm not coming in the courthouse... "
After the June 24 appearance, the website remained unaltered. In light of this continued disobedience for this Court's interim order, the AFC filed a subsequent Order to Show Cause seeking to hold the Mother in contempt.
On June 28, 2024, the Mother posted another blog. There, the Mother again took to the blog to raise her complaints that allegedly this Court was not following procedural law. (On the record on July 1, 2024, the Court allowed the Mother to address these concerns and all were found to be without merit). In addition, she directly quotes documents related to this litigation, including but not limited to, this Court's Orders, papers submitted by counsel on motions, and directly attributing statements to this Court as well as mischaracterizing the statements of this Court.
Again, just a day before the Mother's scheduled court appearance on this issue, on June 30, 2024, she, in defiance of this Court's Order made another post on the website. She attacks her former divorce counsel, naming multiple partners by name, discussing and sharing her own privileged communications, and continuing her arguments of violations of the law. Moreover, within these communications, the Mother again references the Father and the Grandfather in a poor light.
On July 1, 2024, an appearance was held on the AFC's emergency order to show cause. There, the Mother reaffirmed her desire to maintain posting, even after being advised by the Court that such postings may negatively impact the mental health of the children and violated applicable rules. Indeed, during inquiry into the Child's knowledge of the blog or allegations contained in it, the Mother stated on the record, "They know about it!"
Based on the reasons set forth below, the AFC's emergency order to show cause is GRANTED.
DISCUSSION
Courts overseeing divorce and custody matters must involve themselves with many personal decisions for each family that comes before it. In these matters, when the parties cannot agree, Courts necessarily determine many important decisions, including parental access, decision making protocols, and codes of conduct. Sometimes these decisions venture into the most intimate of realms such as religion, health, education, speech and expression.
One common and frequent direction given by Courts dealing with high conflict custody cases is that neither parent disparage the other in the presence of the children and that they not discuss the litigation with the children (see e.g . Matter of Brown v Simon, 195 A.D.3d 806 [2d Dept 2021]["the parties are specifically prohibited from making derogatory or denigrating statements concerning each other in the child's presence or in the presence of 'those who have contact with the child'"]). This is because, as was once remarked, Courts are often concerned that "one of the problems in open matrimonial proceedings is the effect it would have on children of the marriage. While adult parties in today's media-conscious world may be found to have no valid objection to having their dirty linen aired, the same cannot be said of the children who are the innocent victims of both their parents and the media." (Lisa C.-R v William R, 166 Misc.2d 817, 822 [Sup Ct, NY Cnty 1995]).
This case concerns not only limiting the parents' direct expression to the children but also limiting their expression to the outside world. While this may present a conflict with the right to freedom of expression, it is well founded in the controlling statutes and caselaw, and has been found not to be Constitutionally impermissible by the Appellate Courts in this State. Ultimately, what is paramount here are not Defendant's rights but this Court's duty to protect the wellbeing of the children and to safeguard their best interests.
The First Amendment of the U.S. Constitution provides, "Congress shall make no law [...] abridging the freedom of speech." (US Const Amend I). These protections were incorporated and made applicable to this State through the Fourteenth Amendment. (Gitlow v New York, 268 U.S. 652 [1925]).
This constitutional right is not absolute or unlimited. Indeed, "[t]o justify suppression of free speech there must be a reasonable ground to fear that serious evil will result if free speech is practiced." (Whitney v California, 274 U.S. 357, 376 [1927] [Brandeis, J.] overruled on other grounds Brandenburg v Ohio, 395 U.S. 444, 452 [1969]). Here, the "serious evil" at issue is the active interference of the Mother in the Children's paternal and grandparental relationship in direct contravention of their best interests. Critically, an order imposing a prior restraint on speech "must be tailored as precisely as possible to the exact needs of the case" (Karantinidis v Karantinidis, 186 A.D.3d 1502, 1503 [2d Dept 2020]).
The sensitivity to allowing information to flow freely during a matrimonial proceeding was specifically addressed by the Legislature with the enactment of Domestic Relations Law section 235. This section provides, in pertinent part,
An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court. (DRL § 235[a]).
The attention given to confidentiality in matrimonial proceedings, especially those where issues of custody is at issue, is because the nature of the intimate nature of family law proceedings. "Section 235 of the Domestic Relations Law, which prohibits the taking of copies, or even the inspection, of the records of matrimonial proceedings by anyone other than the parties or their counsel, manifests a clear legislative design that those proceedings be kept secret and confidential." (Shiles v. News Syndicate Co., 27 N.Y.2d 9, 14 [1970]; see also, Lisa C.-R v William R, 166 Misc.2d at 820-821 ["That power of exclusion from the trial is repeated in the Domestic Relations Law 235 grants partial confidentiality in divorce proceedings."]). Put simply, "[s]ection 235, which originated in 1847, bars public access to potentially embarrassing materials." (Lisa C.-R., 166 Misc. at 821). The Mother's publication of pleadings in this matter and explicit discussion of the relief sought in the AFC's motion violates this provision of the DRL and represents a threat to the Children's best interests, specifically their emotional and psychological health.
The DRL is not the only statutory authority that supports this conclusion. Indeed, the Legislature made clear in the enactment of Judiciary Law § 4 that when the issue of access to the Court is raised, divorce and custody proceedings are treated unlike traditional proceedings. (Id. ["The sitting of every court within this state shall be public [...] except in cases of divorce [...] bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court."]. Indeed, the need for privacy in matters over which custody is at-issue is made salient in 22 NYCRR 205.4 which allows the Family Court to limit access to the courts.
Outside of statutory language, the case law surrounding the issue and this Court's inherent powers parens patriae support an Order directing the Mother to take down the website and to limit her rights to express herself in certain regards.
Parens patriae, which literally means the father or parent of the country is a concept which has developed out of the old English system whereby a court of equity, exercising the parental function of the Crown, could declare a child to be the ward of the Crown. This concept has been remolded in this country to signify a philosophy whereby the State has the responsibility to act as a "superparent" to persons deemed to be" non suis juris ". Overlapping the court's role as parens patriae is the key principle of "best interests of the child". It has been suggested that parens patriae "contemplates not only a right, but also a duty, on the part of the State, to act for the protection of the individual and then only in his or her best interests." On the basis of its parens patriae power, the Family Court in a number of contexts has decided guardianship and custody questions despite the absence of any statutory grant of jurisdiction. (In re Female S., 111 Misc.2d 313, 315 [Fam Ct, NY Cnty. 1981][internal citations omitted]).
Thus, ab initio, this Court has a duty, even outside of statute, by virtue of this State's police powers afforded under the Tenth Amendment of the U.S. Constitution to act in the Child's best interests and protect the Children.
When the question of the custody of children is brought before the court by habeas corpus, it is the duty of the court to look solely to their welfare and decide accordingly (Matter of Lee, 220 NY 532, 538.) To paraphrase the language of Judge Cardozo in Finlay v. Finlay (240 NY 429, 433-434), the court acts as parens patriae to do what is best for the interest of the child and puts itself in the position of a 'wise, affectionate and careful parent'; the court does not determine 'rights' as between a parent and a child or as between one parent and another; the court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the State as parens patriae. (Application of Norman, 26 Misc.2d 700, 703 [Sup Ct, Nassau Cnty 1960])
Outside of this Court's inherent parens patriae mandate, case law likewise supports the conclusion that, under these circumstances, the best interests of the Children compel the Mother to take the site down.
The issue of injunctions on free speech in matrimonial cases is an issue with which this State is familiar. In a case almost identical to the instant matter, Matter of Walsh v Russell, the Second Department overturned a trial court order directing the father to "erase, deactivate, and delete any existing blogs and likeness." (214 A.D.3d 890, 892 [2d Dept 2023]). In so holding, the Court reasoned that such restriction, "was not tailored as precisely as possible to the exact needs of the case. Specifically, this restriction required the father to delete 'any existing blogs and likeness' regardless of whether the blogs or likenesses relate to the child, the mother, the mother's family or the instant proceedings." (Id.). However, the Court in Walsh approved "a provision directing the father to erase, deactivate, and delete any existing blogs which reference these proceedings or disparage the child's relatives." and rejected the father's claim that that the order's restrictions on his ability to post blogs, display the likeness of the child, and disparage the child's relatives, were constitutionally impermissible (Id.).
The restraints requested and ordered here are more narrowly tailored and are akin to the provision approved in Walsh - they only apply to a specific website, and the expanded reach of them is limited to those that effect the actual evidence in this proceeding, and mediums that are reasonably accessible to the child. Moreover, the information sought to be restrained is precise in that it is information related to the Father and the Grandfather, these proceedings, and information about the Children's counsel. In sum, the holding in Walsh shows the restraints here meet constitutional muster due to their "precise" nature.
Another recent impression on this issue comes from the Second Department's decision in Kassenoff v Kasennoff (213 A.D.3d 822 [2d Dep't 2023]). Notable from this decision is that the Second Department upheld an order preventing both parents from "criticizing, denigrating or disparaging the other on any form of social media." Even with reference to the language Kassennoff found impermissible, it becomes clear the restraints here are of no constitutional concern. Outside of the upheld social media restrictions, the Court was confronted with a restraint that "prohibit[ed] the defendant from discussing the children with any employee of the plaintiff's employer[.]" (Id. at 824). The Second Department held such restriction unconstitutional because it was "'not tailored as precisely as possible to the exact needs of this case.'" (Id. citing Karantinidis v Karantinidis, 186 A.D.3d 1502, 1503 [2d Dep't 2020]). Kassenoff reasoned against upholding that restraint on speech because, "specifically, the restriction prohibiting the defendant from discussing the children with any employee of the plaintiff's employer... was not necessary to prevent professional reputational harm to the plaintiff or financial or emotional harm to the children." (Id. at 824).
However, unlike the instant matter, the Kassenoff restraint was unrelated to actual pleadings and papers which are protected under DRL § 235. And while the Second Department held the restraint relating to discussion with employees was not necessary to prevent harm to "the Children" (id.), the restraint issued herein, which is like the restraint approved in Kassenoff, seeks to do just that - prevent emotional harm to the Children. Thus, the Kasssenoff reasoning supports the restraint sought in this case.
The well-settled standard for issuing a restraint on speech in matrimonial matters is that, "[a]n injunctive order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. The Order must be tailored to the exact needs of the case." (Karantinidis v Karantinidis, 186 A.D.3d 1502, 1503 [2d Dept 2020]). Here, the restraint is narrowly tailored to the Mother's current website, documents protected by DRL 235, information about these confidential proceedings, and the denigration of family members. This meets the "exact needs of the case" because this case requires such a mandate to safeguard the Children from information that if learned will undoubtedly cause a strain on the Children's paternal and grand parental relationship, and would impact the children's well being. Absent restraint, the Court will be permitting these Children's best interests to be at risk.
The restraint being issued here has two aspects. First, it directs the Mother to take down the website. Second, it directs that the Mother not to make any further posts online or anywhere related to evidence and claims raised in this matrimonial litigation. The restraint is narrowly tailored in that its duration exists only during the pendency of these proceedings and it is targeted at deterring the Mother from posting information specifically online that implicates evidence and claims in this case - this is information that, if presented in pleadings or papers, would be wholly made confidential under DRL § 235. Further adding legitimacy to this restraint is that this does not prevent the Mother from alternative avenues of speech. She is free to discuss the matter as she sees fit with friends and family. She is free to keep a private diary or to create a blog relating to any other topic so long as it does not involve these proceedings or denigrate the children's relatives. She can even go on the street and shout that her Husband is an adulterer and express the injustice she feels this Court is committing against her . There is nothing in this Order that prevents the Mother's exercise of her free speech rights so long as they do not impact the Children's best interests. Here, posting on the internet, especially given the Children's age, and given the title of her website and the fame of the paternal grandfather specifically among children, makes this information more than likely to be accessible to the Children.
The only time she would not be able to do this is if it were in the presence of the Children - and that would only relate to information in the case that disparages the Father or his family. Likewise, she could not share confidential documents or transcripts, or any other litigation documents covered by DRL § 235. This is standard non-disparagement provisions that are routinely issued in matrimonial and custody proceedings to ensure children are not thrusted into litigation that can be traumatizing.
The Court's need to act for the Child's best interests is not a novel concept to the First Department (see Anonymous v Anonymous, 263 AD2D 341, 343 [1st Dep't 2000]["[T]he court must strike 'proper balance between the right of access of the public and the press to judicial proceedings and the... interest in protecting children from the possible harmful effects of disclosing harmful information to the public."][internal citations omitted]; P.B. v C.C., 223 A.D.2d 294, 296 [1st Dep't 1996]["Similar to a child protective proceeding, the controlling consideration here is the best interest of the children."]). In a well-reasoned opinion, the Supreme Court of the State of New York noted,
This court finds that the case law supports the conclusion that the court has the power, in an appropriate case, to enjoin one or both parents from making statements to a child that are against the "best interests" of the child if the order is narrowly drawn to meet the purpose. That is, the court must perform a balancing test to weigh the child's right to be protected against harm and the parent's fundamental constitutional right of free speech. The issue of whether to issue an injunction is most readily resolved when there is no serious dispute about the best interests of the child, [] where the proposed injunction is against disparaging a child's guardian or parent. (Stephanie L. v. Benjamin L., 158 Misc.2d 665, 668 [Sup Ct, NY Cnty. 1993]).
Here, this Court is balancing the limited First Amendment speech protections of the Mother against the Children's best interests. In balancing these now competing interests, the Court finds that the narrowly tailored restraint is necessary to protect the Children's best interests. The Court of Appeals has been clear that this Court must approach issues of custody uniquely and individually on a case-by-case analysis. Indeed, the guiding principle for custodial issues is, "[t]he only absolute in the law governing custody of children is that there are no absolutes." (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 93 [1982]; see also, Eschbach v Eschbach, 56 N.Y.2d 167, 171 [1982]["As we have recently stated, there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the Child."]). Here, the law demonstrates that speech rights in custody proceedings are not absolute, and indeed, this Court finds under the specific facts here that a restraint on speech is absolutely necessary to safeguard the best interests of the Children and to ensure this Court fulfils its parens patriae duties.
Anything short of these protections would prejudice the Father's claims for custody in this case and prejudice the AFC's ability to effectively advocate and represent her clients. Thus, absent restraint, the Mother's continued conduct "is 'likely to produce a clear and present danger of a serious substantive evil that rises far above public unconvinced, annoyance or unrest," in that it presents a "clear and present" threat to cause irreparable harm to the Children's paternal and grandparental relationship. (Kassenoff, 213 AD.3d at 824 citing Rosenberg Diamond Dev. Corp. v Appel, 290 A.D.2d 239, 239 [1st Dep't 2002]).
Thus, the AFC herein, based on the specific circumstances of this case, has met her "heavy burden of demonstrating the justification for" the imposition of the prior restraint. (Ash v Bd. Of Mgrs. of 115 Condominium, 44 A.D.2d 324, 325 [1st Dept 2007]).
Unfortunately, the mother continues to demonstrate poor judgment in that she places greater weight on her need to publicly express herself about these proceedings, in violation of both statute and Court order, over what is best for the children, and the continued risk of harm to the children based on her continued disparagement of their father and his relatives, and her efforts to take this custodial conflict to the public and the media. This Court, however, will not stand by or neglect its duties to safeguard the best interests of the children while the mother recklessly and selfishly continues on this path.
Accordingly, the AFC's request for a direction that the mother take down the website and not engage in further posting related to issues in this case is GRANTED as detailed herein.
In addition to the above restraint, this Court, sua sponte, is issuing a Temporary Order of Protection pursuant to DRL § 240[3][a]. Section 240 of the Domestic Relations Law provides this Court "may make an order of protection in assistance or as a condition of any other order made under this section." Herein, the Court finds a temporary order of protection will assist in ensuring the best interests of these Children are not further compromised by the Mother.
Specifically, this Court will issue, simultaneously herewith, a Temporary Order of Protection for the benefit of the Children and the Father that shall direct the Mother to: (1) refrain from committing harassment, or any other family offense against the Children or the Father; and (2) refrain from acts or commission or omission that create an unreasonable risk to the health, safety, welfare (including the psychological welfare) against the Children or the Father; (3) not disparage the Father, Grandfather, or any other relatives, in the presence of the children or on any blog, social media, or website the children could reasonably access; along with the relief set forth in the restraint. (See DRL § 240[3][a][3], [5]). These protections are both reasonable and necessary given the Mother's stalwart determination to continue posting on the website and her well-demonstrated inability to respect the rule of law. Indeed, she, on her own volitation, has already openly proclaimed on the record that she is in contempt of this Court. These protections are necessary to deter the Mother's continued and counterproductive vigilante justice.
CONCLUSION
Based on the foregoing, it is hereby, ORDERED, that the Attorney for the Child's Emergency Order to Show Cause is GRANTED, as set forth herein; and it is further
ORDERED, that the Mother shall forthwith and until the conclusion of these proceedings take down the website; and it is further
ORDERED, that, during the pendency of these proceedings, the Mother is prohibited from posting, publishing or sharing publicly any blog posts, posts, photographs, videos, audio recordings, text messages, notes, and the like of Plaintiff, Subject Children, paternal relatives, or any other individual or communication related to the claims in this pending litigation or any potential evidence in this action on any social media, websites, newspapers or publications; and it is further
ORDERED, that neither parent, in the presence of the Children, or on any medium reasonably accessible by the children, disparage the other parent or the relatives or partners of the other parent, discuss litigation or litigation-involved professionals, or discuss the Children's relationship or communications with their attorney; and it is further
ORDERED, that neither party shall discuss with or interrogate the Children regarding the content of their interviews with their attorney; and it is further
ORDERED, that by separate order issued simultaneously herewith, the Children and the Father are granted a Temporary Order of Protection with refrain from protections against the Mother.
This constitutes the decision and order of this court.