The following Papers Numbered: 1 to 10 were read on Order to Show Cause seeking, among other things, to hold Defendant in contempt: PAPERS NUMBERED No on Calendar of Notice of Motion-Order to Show Cause-Exhibits and Affirmation Annexed 1-10 Answering Affidavit and Exhibits- (Oral Argument and Exhibit) Replying Affidavits and Exhibits Other. DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order of this Orders to Show Cause is as follows: Plaintiff brings this Order to Show Cause seeking an order directing Defendant to remove from his website all references to, and documentation identifying their son including Defendant’s recording of the conference call with the Court on January 15, 2019. Defendant’s three orders to show cause that he filed on November 21, 2019, February 19, 2019 and November 27, 2018 as well as their son’s photograph. Plaintiff also moves for an order (1) directing Defendant to take down his GoFundMe page which identifies their son’s name and publishes his picture; (2) directing Defendant to refrain from publicly disseminating, posting on the internet or social media any information that identifies their son’s name or likeness, or information which identifies her and this divorce action; (3) reappointing Nick Frisco, Esq.; (4) modifying this Court’s Order dated June 21, 2019 by requiring Defendant’s access with their son to be supervised by a third party; and (5) directing Defendant to bear all the costs associated with the third party supervisor and the reappointment of attorney for the child (AFC). Defendant, pro se, did not submit any opposition papers to Plaintiff’s various applications. However, the Court takes notice that Defendant expressed his opposition to the Plaintiff’s applications during oral arguments held on February 13, 2020. Defendant insisted during oral argument that Plaintiff’s requests violate his constitutional rights. The Court determines Plaintiff’s Order to Show Cause on default as follows. Background The parties originally appeared on this Order to Show Cause on February 13, 2020 pursuant to 22 NYCRR 202.7(f). The Court issued an Order dated February 13, 2020, directing the Defendant to immediately remove the recording he made of a conference call with the Court from any website. The Court also temporarily restrained the Defendant “from posting any further pictures of the parties’ son on his website that are the subject of Plaintiff’s O.S.C. until a determination can be made regarding the child’s best interest.” The Court granted Plaintiff’s application to appoint Nick Frisco, Esq. as the attorney for the child, and directed the parties to equally share the cost without prejudice. Shortly thereafter, and before the return date of this Order to Show Cause, the Court was closed due to the COVID-19 pandemic. The Court subsequently communicated with the parties via email several months later and established a briefing scheduled for the parties to submit additional papers. Defendant nor the attorney for the child submitted any papers in response to the instant Order to Show Cause. Injunctive Relief Plaintiff argues that publicly identifying their son by name, publicly publishing his photograph, and publicly revealing information about their son and this matrimonial matter constitute a severe lapse in Defendant’s judgment and is devastating to their son’s best interest. Plaintiff states that the Defendant secretly recorded the conference call between him, the Court, the attorney for the child. Plaintiff and her attorney wherein the parties discussed intimate details of the circumstances surrounding her request for supervised visits and repeatedly referred to their son by his name. Plaintiff also states that Defendant published his un-redacted orders to show cause on his website that contain identifying information of their matrimonial proceeding including their names, the index number, their son’s name, and his requests for an expansion of parenting time. Plaintiff insists that Defendant’s public dissemination of the information poses a real risk for their son. Plaintiff requests that this Court direct the Defendant to refrain from posting or publicly disseminating, whether on social media, the internet, or in any other format, any document or photograph that identifies their son or identifies information relating to this matrimonial proceeding. “A permanent injunction ‘is an extraordinary remedy to be granted or withheld by a court of equity in the exercise of its discretion. Not every apprehension of injury will move a court of equity to the exercise of its discretionary powers” (see Caren Ee. v. Alan Ee, 124 AD3d 1102 [3rd Dept 2015] citing Kane v. Walsh, 295 NY 198 [1946]). “To be entitled to permanent injunctive relief, a party must demonstrate irreparable harm and the absence of an adequate remedy at law. A party must further establish that the balance of equities favors the granting of relief” (Caren Ee., 124 AD3d 1102). Moreover, it has long been established that prior restraints on speech and expression “are the most serious and the least tolerable infringement on First Amendment rights…any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity’” (see Ash v. Board of Mgrs. of the 155 Condominium, 44 AD3d 324 [1st Dept 2007] referring to Nebraska Press Assn. v. Stuart, 427 US 539 [1976]). A prior restraint on speech is “a law, regulation or judicial order that suppresses speech — or provides for its suppression at the discretion of government officials — on the basis of the speech’s content and in advance of its actual expression” (Ash, 44 AD3d 324 see also Shak v. Shak, 484 Mass 658 [2020] citing Alexander v. United States, 509 US 544 [1993]). Upon a careful review of the record herein, the Court finds that a permanent restraining order prohibiting Defendant from posting photographs of the parties’ son on his website or any other social medium would constitute an improper prior restraint inconsistent with the First Amendment to the United States Constitution and well-settled caselaw. “A prior restraint is permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm” (Shak, 484 Mass 658). The party seeking the imposition of such a restraint “bears a correspondingly heavy burden of demonstrating justification for its imposition” (Ash, 44 AD3d 324 citing Organization for a Better Austin v. Keefe, 402 US 415 [1971]). In the instant matter, Plaintiff failed to meet the heavy burden of demonstrating the necessity of the imposition of a prior restraint upon the Defendant preventing him from publishing their son’s pictures. The Court finds nothing on this record to suggest that the photographs of the parties’ son which Defendant published on his website and the GoFundMe page pose a “clear and present danger of a serious substantive evil” or harm, albeit, the Plaintiff finds it troubling (Rosenberg Diamond Development Corp. v. Appel, 290 AD2d 239 [1st Dept 2002] citing Terminiello v. City of Chicago, 337 US 1 [19491). Two of the three photographs published on Defendant's website, and which according to the Plaintiff depict their son making "villain" and "sick" faces, do not rise to the level of clear and present danger of substantive evil or harm warranting an infringement on Defendant's First Amendment rights. Plaintiff's contentions that Defendant's publication of their son's photographs poses a real risk of harm to their son, and that he will be able to access these statements on the internet when he is older are conclusory and speculative at best. Plaintiff does not provide any objective arguments or proof of the harm that their son will experience if his father is allowed to publish his pictures on the internet. In Shak, a case that gained national media attention, the Supreme Judicial Court of Massachusetts vacated the future nondisparagement paragraphs of the lower court's order finding that the prior restraints violated the husband's First Amendment right to free speech (484 Mass 658). The mother was granted temporary custody and exclusive use and occupancy of the marital residence and the Probate and Family Court judge set a date for a hearing. Prior to the hearing, the mother was granted temporary injunctive relief that prohibited the father from posting disparaging remarks about her and the ongoing litigation on social media. The mother thereafter attempted to hold the father in contempt of court for his alleged violation of the nondisparagement order. The mother alleged that the father published numerous social media posts and commentary disparaging her and detailed the specifics of their matrimonial litigation. The father, in opposition, insisted that the court did not have the authority "to issue [a] prior restraint on speech.” After a hearing, a different Probate and Family Court judge denied the wife’s application to hold the father in contempt based upon a finding that the disparaging paragraphs of the order “constituted an unlawful prior restraint of speech in violation of the father’s Federal and State constitutional rights” (Shak at 659).1 The hearing judge determined, however, “that orders restraining speech are permissible if narrowly tailored and supported by a compelling State interest” (Id. at 659). The judge attempted to cure the disparaging paragraphs of the first order by redrafting them to include language prohibiting the parties from using disparaging language on any social media, or other internet medium or if the children were within 100 feet of the communicating party where the children could hear, read or see the disparagement while they have children in common under the age of 14 years old (Id.). The judge stayed the two orders to report the question to the appellate court. The Supreme Judicial Court of Massachusetts (“Supreme Judicial Court”) accepted the mother’s application for direct appellate review to address the orders issued by the judge who conducted the hearing. The Supreme Judicial Court held that the hearing judge’s two prior restraint orders were unconstitutional “because there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint” (Id.). More importantly, for this Court’s analysis, the Supreme Judicial Court reasoned that “the [hearing] judge properly noted that ‘the State has a compelling interest in protecting children from being exposed to disparagement between their parents.’” (Id. at 663). The Supreme Judicial Court determined, however, that “as important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting the interest is not enough to satisfy the heavy burden of justifying a prior restraint” (Id. at 663). The Supreme Judicial Court also determined that mother’s “concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint” (Shak at 659 citing Nebraska Press Ass’n, 427 US 539). Similar to Shak, the State of New York has a compelling interest in protecting children from things they may be exposed to or read on the internet. The Plaintiff on this record does not present any information that is particularly disparaging or concerning in the orders to show cause that the Defendant posted on his web page. Defendant’s possible disparagement of the Plaintiff and criticism of this Court in his orders to show cause and other internet postings alleged on this record are not on their face a cause of emotional and psychological harm to the parties’ son to justify a permanent prior restraint. The Court recognizes that DRL §235 prohibits any person except the party to a matrimonial proceeding or that party’s attorney of record from obtaining “a copy of any of the pleadings, affidavits, findings of fact, conclusion of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof of any matrimonial matter “either before or after [its] termination.” However, DRL §235 places no restriction on the parties to the matrimonial action on how they use their copies of the court papers (see for example Danziger v. Hearst Corp., 304 NY 244 [1952]). Ultimately, the Court finds that although injunctive relief may sometimes be granted to prevent emotional or mental anguish in special circumstances, there are no special circumstances on this record to warrant a permanent prior restraint (see for example Caren Ee., 124 AD3d 1102). Accordingly, Plaintiff’s application seeking an order directing Defendant to remove all references to and documentation identifying the parties’ son in the photographs published on the Defendant’s website and GoFundMe page is denied. In addition, Plaintiff’s application seeking to restrain the Defendant from posting on the internet or social media and publicly disseminating any information that publicly identifies their son’s name and likeness in the future is denied without prejudice at this time. Either party may seek such relief upon a showing that they can meet the heavy burden that the imposition of such a restraint is justified to restrict the other party’s First Amendment rights (Ash, 44 AD3d 324). Electronic Recording of Court Proceedings Plaintiff’s application seeking to restrain the Defendant pursuant to CPLR §6301 from posting any further recordings and transcripts of recordings of the Court proceedings is hereby granted. 22 NYCRR §29.1 (a) clearly prohibits the recording of any proceeding in the courthouse. The Court’s conference call with the parties unquestionably occurred while Judge McShan was in the courthouse. Defendant’s recording of the conference call violates Rule 29.1 of the Chief Judge. Accordingly, Defendant is restrained from recording any proceeding with the court and shall remove any such unlawful recording from his website or any other social medium. Modification of Custody and Parenting Time Plaintiff also seeks to amend the access schedule arguing that Defendant’s ability to make decisions for their son and in their son’s best interest remains impaired. Plaintiff asserts that she has every reason to be concerned due to Defendant’s public dissemination of information identifying their son, his likeness and the details relating to the custody and parenting time. Plaintiff ponders whether during his unsupervised visits, does Defendant record their son, and does he tell their son that Plaintiff and the police cannot be trusted. Plaintiff reports an incident on February 11, 2020 when Defendant refused to bring their son into the McDonalds located at 236th Street and Broadway for the exchange despite this Court’s November 25, 2019 Order. Plaintiff suggests that the Defendant left their son alone in the car in the McDonalds parking lot and that he demanded that she approach his car alone. Plaintiff requests that Defendant’s visits with their son be supervised and paid for entirely by him due to his unilateral actions. Plaintiff also requests that Defendant be solely responsible for the costs associated with the AFC’s reappointment. Generally, “[t]o warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing [that there has been] a change in circumstances, such that the modification is required to protect the best interest of the child” (see for example Wagner v. Villegas, 162 AD 3d 677 [2d Dept 2018]; Bacchus v. McGregor, 147 AD 3d 1049 [2d Dept 2017]). The Court takes notice that by Order dated August 22, 2018, Plaintiff was granted physical and legal custody of the parties’ son. The Court also takes notice that the Defendant was granted specific unsupervised parenting time in accordance with its Order dated June 21, 2019. The Court finds that Plaintiff failed to establish a change of circumstance to warrant a hearing on her request to modify Defendant’s parenting time from unsupervised to supervised based upon the Court’s findings hereinabove (see for example In the Matter of Benjamin Perez v. Sepulveda, 51 Ad 3d 673 [2d Dept 2008]). Plaintiff’s disagreement with Defendant’s judgment to put post their son’s pictures and information regarding their matrimonial action do not create a change of circumstances to warrant supervised visitation. Defendant’s questionable judgment in the exercise of his First Amended Right is not devastating to their son’s best interest as determined above. Attorney for the Child The attorney for the parties’ son, Nick Frisco, Esq., is relieved from this matter in light of the Court’s findings above. Plaintiff’s application seeking an order directing the Defendant to bear all the costs associated with the reappointment of the AFC is hereby denied. Plaintiff shall be responsible for 100 percent of the attorney for the child’s fees based upon the Court’s findings hereinabove. In light of the foregoing, it is hereby ORDERED that Plaintiff’s applications seeking an order directing Defendant to remove from his website all photographs, references to and documentation identifying their son is denied in accordance with the Court’s findings hereinabove; and it is further ORDERED that Plaintiff’s application seeking an order directing the Defendant to refrain from posting on the internet or social media and publicly disseminating any information that publicly identifies their son’s name or likeness, or information which identifies the Plaintiff and this divorce action is denied in accordance with the Court’s findings hereinabove; and it is further ORDERED that Plaintiff’s application seeking an order directing Defendant to remove from his website the recording of the conference call with Court on January 15, 2019 is granted in accordance in accordance with this Court’s Order dated February 13, 2020; and it is further ORDERED that Defendant shall be restrained from recording any in-court proceeding with the court, including but not limited to any conference calls, emails, and virtual conferences; and it is further ORDERED that Plaintiff’s application seeking to modify the order of parenting time dated June 21, 2019 requiring that Defendant’s access with their son be supervised by a third party is denied in accordance with the Court’s findings hereinabove; and it is further ORDERED that the attorney for the child, Mr. Frisco, Esq., is relieved from this matter; and it is further ORDERED that Plaintiff shall be responsible for 100 percent of the attorney for the child’s fees based upon the Court’s findings hereinabove. The foregoing shall constitute the decision and order of this Court. Dated: April 2, 2021
