A Judge in Family Law Court, Whether Successor or Predecessor, Has Continuing Jurisdiction to Modify A Sealing Order

The parties were married and in the process of divorcing. Husband co-founded a well-known technology company and also faced a separate federal criminal indictment. As a result the divorce action drew substantial media interest. Several different Orange County courts were assigned and reassigned to this divorce case, with each modifying existing or issuing new sealing orders. The parties’ Orange County divorce attorneys wanted all records sealed, but particularly any documents relating to child custody of the couple’s three minor children. Various Orange County courts issued a series of eight sealing orders, which initially sealed confidential information – very broadly described – as well as documents relating to the minor children,  restricted the Orange County divorce court files to the attorneys of record only, and at one point sealed all the documents in the court file. The orders culminated in the Los Angeles Times filing a motion to intervene and unseal the records of the Orange County divorce court. The seventh sealing order then unsealed two sets of documents, including pleadings and redacted judgment. Husband’s Orange County divorce attorney appealed.

Does a successor divorce court retain continuing jurisdiction to modify sealing orders? The simple answer is yes. Sealing orders are not permanent, inflexible orders are set in stone. They may change with new circumstances throughout a case potentially several times before a final judgment. Procedurally, the Orange County divorce court’s order that directed the unsealing of two particular sets of documents was appealable as a final order as a collateral matter.

Very importantly, sealing orders implicate the public’s right to access under the First Amendment. Moreover, any person, not just the parties, can seek to unseal any court record, as the Times did here. Sealing orders are not treated as permanently sealed after issuance, but are subject to ongoing scrutiny, including by trial courts.  In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, the court noted that “a strong presumption exists” favoring public access to court records in ordinary civil trials, including divorce cases. The California Rules of Court, rule 2.550 implements the constitutional standard from NBC Subsidiary of express factual findings needed to justify a sealing order, and rule 2.551 expressly authorizes the court to unseal records. Thus, courts may only seal records in limited circumstances. A party’s desire to avoid media attention is not enough absent other facts. Of course, family law cases may concern valid overriding privacy interests, such as matters of child custody or visitation of minor children, that can justify limited sealing.

Here, the Times did not oppose such redactions of information about the parties’ children, Social Security numbers, addresses, brokerage account numbers, or other information that carries the burden required to seal or redact. The Times did contend correctly that no justification existed for the “blanket sealing order” that essentially shielded the whole court file from the public. Thus the Court of Appeal in Orange County affirmed the seventh sealing order that unsealed two sets of documents, rejecting Husband’s Orange County divorce attorney’s contention the Orange County divorce court lacked jurisdiction to revise the sealing order.

In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566