The following papers were read on this motion: Order to Show Cause, Affirmation in Support 1 DECISION & ORDER PRELIMINARY STATEMENT The United States Attorney’s Office (“USAO”), Eastern District of New York (“EDNY”) seeks an order, pursuant to Domestic Relations Law §235(1) for the disclosure of (1) the transcript of the court proceeding held in this matter on July 25, 2019; (2) any and all court orders and/or directives, including, but not limited to, transcripts of any oral court orders and/or directives setting forth the terms and conditions governing the Defendant’s contact with her minor child; and (3) a copy of the Court’s Order of Protection issued against the Defendant as it relates to the Plaintiff and/or the parties’ minor child. Although written opposition was not submitted, the Court heard lengthy oral arguments from the USAO, Plaintiff’s counsel, Defendant’s counsel, and the Attorney for the Child. DISCUSSION USAO argued that the requested documents are directly related to the Defendant’s, (who is currently indicted on Federal charges and is in Federal custody), ability and/or failure to abide by Court orders, which is a central issue in the bail motion pending before EDNY Judge Sandra Feuerstein in the matter of United States v. V.C, XXXXXX. USAO explains that the New York Post and the Daily News, in articles dated July 25, 2019, reported that the Defendant has been temporarily barred from further contact with her son for failing to follow the Court’s directives during a call between the Defendant and her minor son, and that she became argumentative with a court-appointed psychologist who was on the phone at the time. The USAO contends that the requested records, if released, will remain in the custody of the USAO and would only be submitted to the District Court under seal. The Attorney for the Plaintiff1, consents to the USAO’s request. The matrimonial attorney for the Defendant at first stated that he would rely on this Court’s discretion with regard to releasing the requested records. However, after the Court posed the option of releasing only certain portions of the transcript, Defendant’s counsel argued that if any of the transcript was going to be released, the entirety of the transcript should be released, but then he stated that he and his client would rather nothing be released. The Attorney for the Child opposed the USAO’s request and argued that the release of said material is not in the best interest of the Child and expressed concerns that the release of these requested documents would alter the proceeding of the instant divorce action for the concern that the USAO would attempt to have all records and transcripts released after every appearance on the divorce matter. In response, the USAO explained that they would only seek additional transcripts or records from this divorce action if it directly related to the criminal matter and continued to assure that the USAO would not disseminate any of the records, except under seal to the District Court. Domestic Relations Law (“DRL”) 235(1) sets forth as follows: 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, 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. Before a Court may order production of the information as to details of a matrimonial action, the Court must be convinced by the applicant that the intrusion into essentially private matters is warranted and that special circumstances are required. (See Rubino v. Albany Medical Center Hospital, 126 Misc2d 204 (Sup. Ct. Albany County 1984); citing People v. Doe, 117 Misc2d 35 (Sup. Ct. New York County 1982). DRL §235 requirement of a court order is a reasonable mechanism to screen and supervise interventions in the sensitive area of divorce proceedings. People v. Doe, Supra. Further, when evidence contained in the records of divorce proceedings is both significant and relevant to a separate proceeding, the “shield afforded by Domestic Relations Law §235 must give way to the need for disclosure of relevant evidence.” Janecka v. Casey, 121 AD2d 28 (1st Dept. 1986). In People v. Malaty, 4 Misc.3d 525 (Sup. Ct. Kings County, 2004), the defendant therein was charged with various counts of grand larceny, forgery, and criminal possession of a forged instrument. The State of New York applied for judicial subpoenas duces tecum, seeking to order the clerks of the Supreme Court of New York County and of the Family Court of Queens County to produce certified copies of defendant’s respective divorce and child custody proceedings that were adjudicated in those courts. The Supreme Court found that the State of New York demonstrated the potential relevance of the issues in the criminal case of the defendant’s divorce and Family Court proceedings as they pertained to the defendant’s assets. Further, there, the Court directed an in camera review of the records and would thereafter, release only the portions of the records that the Court deemed relevant to the question of the defendant’s property at issue in the criminal case. In all matrimonial matters involving custody, this Court’s paramount concern is the best interests of the child(ren). Here, this Court permitted, and arranged, for the Defendant, while in Federal custody, to have telephone contact with the Child through the use of a psychologist to insure the appropriateness of the communication. This Court set certain parameters with regard to the telephone contact. During the conference on July 25, 2019, it was reported that some of the parameters set by this Court were not met. Accordingly, based upon the prevailing case law, DRL §235 and the circumstances of this case, the Court does not believe the best interests of the Child will be effected whether or not the records are released. Further, the USAO has demonstrated the potential relevance to the issues in the criminal case to the records requested from the within divorce proceeding. Therefore, it is hereby ORDERED, that the USAO may order the transcript of the Court proceeding held in the within matter on July 25, 2019 from the Court reporter, and the Court Reporter shall fulfill said request; and it is further ORDERED, that the USAO may obtain any and all Court orders and/or directives, including, but not limited to, transcripts of any oral Court orders and/or directives setting forth the terms and conditions governing the Defendant’s contact with her minor child; and it is further ORDERED, that the USAO may receive a copy of the Court’s Order of Protection issued against the Defendant as it relates to the Plaintiff and/or the parties’ minor child; and it is further ORDERED, that the obtained records shall remain in the custody of the USAO during the course of the prosecution and neither the records nor the information contained therein shall be disclosed to any person or entity outside of the USAO or the investigative agencies assisting the criminal investigation; and it is further ORDERED, that if the USAO seeks to submit any of the obtained records to the United States District Court for the Eastern District in further support of the Government’s opposition to the Defendant’s request for bail therein, said request shall be submitted under seal. This constitutes the Decision and Order of this Court. Dated: August 22, 2019 Mineola, NY.
