By Erica Christian
Attorney, Cordell & Cordell, P.C., Milwaukee office
We see it everyday. Mom files a petition for sole custody and placement alleging that the only safe place for the child is in the arms of the mother. A child needs his or her mother and she is the only one who knows what is best for the child. She may “allow” Dad to visit his child (seeing him as just a free babysitter) but when it comes down to it, any substantial periods of placement would put the child in imminent danger. She would be happier if he was out of the picture altogether. Well, except for that monthly child support check. Please excuse the sarcasm. This is certainly not all women. But unfortunately, men come to see us everyday describing a situation where their parental rights are being disregarded and outright violated.
As I brushed up on current events on CNN.com, I came across the Bristol Palin/Levi Johnston custody battle (the once-couple are pictured above in a photo taken from MySpace). I will preface: I am not involved in this case; I have never met anyone with the last name Palin or Johnston; I am not commenting on the actual parenting ability of either party; I am not providing any legal advice; and in no way should this article be interpreted to support or oppose any political party. This is an article which explores some of the domestic litigation issues that are apparent from the media coverage of the case. Each state has distinct statutes which govern custody and placement of children. If you are experiencing any issues relating to custody or placement of a child, you should contact a domestic litigation attorney licensed in your state.
Early in her campaign, Sarah Palin announced that her eldest daughter, Bristol was pregnant and was engaged to be married to the father. At the time of the announcement, Bristol was 17 while the father, Levi Johnston, was 18. The two welcomed Tripp Easton Mitchell Johnston in December 2008. A few months later, rumors of their break-up hit newsstands. By news stands, I refer to the magazines in the checkout lane at a grocery store. Fast forward to today, the parties are now in the midst of a custody battle with media coverage every step of the way.
According to the same sources outlined above, in early November, Bristol, now 19, filed a petition seeking sole custody of Tripp and child support payments. In support of her petition, Bristol alleged that Levi has exercised “sporadic” visitation rights and suggests he may have issues with substance abuse based on statements he made about seeking marijuana on the popular social networking site, Twitter. She also includes a request that Levi’s mother, who has a recent drug conviction, be prohibited from unsupervised visits with the child. In addition to her petition, she sought an order closing the proceedings arguing that the scrutiny the case could attract could cause her son embarrassment as he grows older.
In response, Levi, also 19, asked the Court to award the parties joint custody of Tripp and objected to Bristol’s motion to close the court proceedings. He denied that he has avoided responsibilities and combats the drug use allegation by stating he doesn’t have a Twitter account. On Larry King Live, he revealed that Bristol refused to allow him to take Tripp outside of the Palin home. In response to the request for closed proceedings, he explained that he needed the protection an open proceeding would provide against Bristol’s mother and that he just wanted a simple case on the merits.
Coverage of the case intertwines dramatic allegations and comments from the attorneys representing the parties. This article covers only the legal aspects of the case applied to the “facts” obtained from my trusty “sources.”
Are custody hearings open to the public?
Most people do not know that they can attend most court proceedings even when they are not a party to the action. If you do not have cable, you can get your daily dose of drama by walking to your local courthouse. But if you are expecting a Law and Order or Judge Judy experience, you will be sorely disappointed.
The Supreme Court has recognized a First Amendment right to access to the court system in criminal cases. In criminal trials, there is a presumption that the trial and proceedings will be open to the public. This right is rooted in the concerns for fairness, public confidence, and informed governance. The presumption however can be overcome upon a showing that the closure is necessary based on a compelling governmental interest and that the closure is narrowly tailored to serve that interest. Put in more common terms, it is a two-part test, first, the party who wants to close the hearing has to produce evidence that there is an interest which overrides the First Amendment right and, second, that closing the hearing is the least restrictive means of protecting that interest. In cases where the rights of the defendant to a fair trial are in jeopardy, the Judge, in an exercise of discretion, may close the hearing provided he or she articulates that the closure is necessary.
Many courts have read the Supreme Court rulings on access to criminal proceedings to mean that the right also extends to civil cases, including child custody proceedings. However, all states have some form of confidentiality laws for proceedings where the interests of children are implicated. In applying the two part test outlined above, protection of children is a compelling state interest which may trump the access rights of the public. An important distinction in the types of cases involving children that are open to the public is the evidence that the closure is necessary to prevent a specific harm to the child. Some courts require a showing of an imminent harm, while others have simply required a showing of a possibility of harm. Cases with abuse allegations in particular are closed to the public to spare the victim of the public embarrassment and because open hearings may deter the victim from coming forward. In addition to or as opposed to closed sessions, the Court could require the use of pseudonyms or gag orders prohibiting the parties from discussing the details of the case to non-parties. For more information on closed proceedings in your jurisdiction, you should contact a domestic litigation attorney licensed in your state.
This brings us to the custody proceedings at hand. Bristol’s motion to close the proceedings was denied after a hearing on the matter in December 2009. In support of her motion, Bristol argued that due to advancements in technology, coverage of the case would be available to Tripp when he is old enough to read. Assuming this was the extent of her argument for closing the proceedings (my sources have not provided the transcripts of the hearing), her statement did not meet her burden of showing that the revelations of the case could or would actually cause harm to the child. Alaska may or may not have a statute which establishes a presumption of open proceedings. In addition, the Judge likely had wide discretion in deciding the matter. But just applying our two part test, the Judge’s ruling was fair considering the statement above is just an unsubstantiated claim that fails to override First Amendment rights.
 In Press-Enterprise Co v. Superior Court of California, the Court held that criminal proceedings cannot be closed unless specific articulated findings demonstrate that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” 464 US 501 (1984).
 For example, the Supreme Court of New Jersey held that “the societal and institutional values served by open access to criminal proceedings are also implicated in civil proceedings.” New Jersey Division of Youth and Family Services v. J.B., 120 N.J. 112, 124, 576 A.2d 261, 267 (1990). “In cases involving the State’s compelling interest in safeguarding the physical and psychological well-being of minors, trial courts should weigh a variety of factors relating to the actual effect of open proceedings on the particular child.” Id.
 Smith v. Daily Mail Pub. Co., 443 US 97, 105 (1979).
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.