Lucy P. Bernier, Law Guardian. Joseph A. Ermeti for petitioner.
Michael M. Albanese for respondent.
Brian D. Burns, J.
In 1998, after an eight-day hearing, the court awarded custody of Brianna Winslow to her father, Mark Winslow. Almost immediately thereafter, Brianna and her mother, Vicky Shaffer, disappeared. They were gone roughly three years, eluding a search by federal, state, and local law enforcement. Ms. Shaffer returned with the child in the spring of this year. The authorities arrested her, and placed the child with Mr. Winslow in accordance with the existing court order.
Ms. Shaffer subsequently filed an action to enforce an agreement between her and Mr. Winslow that was apparently negotiated while she was in hiding and induced her return. The agreement, signed by the Law Guardian as well as the parties, would return primary physical custody of Brianna to Ms. Shaffer. Mr. Winslow refuses to comply with the agreement, contending that he signed it under duress.
A hearing commenced on July 2, 2001. At the conclusion of the first day of testimony, Ms. Shaffer's counsel announced his intention to call the Law Guardian as a witness when the hearing resumes. The matter presently before the Court is the Law Guardian's order to show cause seeking to prohibit either party from calling her as a witness.
The Law Guardian has also moved the Court to close the courtroom to media and the public for the duration of this case. As this issue has far-reaching implications beyond the present case, the Court shall address it first.
While an open courtroom promotes the informed citizenry crucial to democratic participation, the Court understands the concerns put forth by the Law Guardian. However, Uniform Rules for Trial Courts (22 NYCRR) part 205 spells out the policy for public and media access to Family Court proceedings. That section creates a presumption of an open courtroom, with exceptions only in unusual circumstances. The Law Guardian has not demonstrated that the circumstances in this case overcome the presumption of an open courtroom. (See Anonymous v Anonymous, 263 A.D.2d 341, 345 [1st Dept. 2000] [" The burden is on the party seeking closure to show a compelling interest which justifies that relief" ].)
She has stated her belief that an open courtroom adversely affects the actions of lawyers, witnesses, and judges, and urges the Court to put the best interests of the child ahead of what she terms the media's interest in profit. While the Law Guardian leaves out of the equation the public's right to know, her effort to shield her client from any potential harm (including from publicity) is appropriate.  However, the debate between proponents and opponents of an open courtroom has already taken place. It culminated in a policy binding on the courts. That policy, as noted, creates a presumption of an open courtroom.
Put differently, the Law Guardian's objections to an open courtroom in this case would apply to every custody case.  The drafters of the New York Uniform Rules for Trial Courts take a different view from her, and their view is binding on this Court.
We now turn to the Law Guardian's request for an order prohibiting the parties from calling her as a witness. While there are reported cases ...