BILL NUMBER: S9732

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the family court act, in relation to ensuring the seal-
ing of certain records relating to a proceeding for judgment of parent-
age

 
SOURCE OF BILL:

This bill is being introduced at the request of the Judiciary, on the
recommendation of the Chief Administrative Judge's Matrimonial Practice
Advisory and Rules Committee.

 
PURPOSE OF BILL:

This bill amends the Child Parent Security Act to ensure that the seal-
ing provisions of the Act are not compromised by rules requiring
parties' names in captions in papers.

 
              

SUMMARY OF PROVISIONS:

Section 1 of the bill amends Family Court Act § 581-205 to provide that
the county clerk or the clerks of the surrogate's or family courts shall
not display the surname of the child or party in any caption, document,
index or minutes available to the public, whether filed in hard copy or
electronically on the NYS Courts Electronic Filing System.

Section 2 of the bill provides that it shall take effect immediately.

 
JUSTIFICATION:

This proposal would amend the Child Parent Security Act (CPSA) enacted
in 2020 to make clear that the sealing requirements of the Act are
enforced and are not compromised by rules requiring parties' names in
captions in papers.

The Child Parent Security Act provides that court records relating to
parentage proceedings shall be sealed with certain exceptions for child
support administration by state authorities, but may be available for
inspection and copying only by the parties or the child. However, pursu-
ant to both CPLR § 2101(c) and 22 NYCRR § 202.5(d)(1), the County Clerk
as the Clerk of the Supreme Court, or the Surrogate's Court Clerk where
the initial petition is filed, is required to display the names of
parties unless the statute, a court rule or court order specially prohi-
bits.(1)

The CPLR and court rules requiring parties' names in captions are
intended for the typical type of litigation where (i) the parties'
interests are adverse to each other and the defendant needs to know the
plaintiff's identity in order to defend the case, and (ii) where there
is no statutory sealing requirement as there is with the CPSA.(2) Even
then, there are exceptions granted depending on the facts of the case,
such as where there are good reasons to allow anonymity and plaintiff's
identity can be ascertained sufficiently to allow the court jurisdic-
tion.(3) By contrast, in most cases under the CPSA, the parties petition
the court consensually for a judgment of parentage, and rules as to
names of parties in captions are inapplicable.
(1) See CPLR § 2101 (c) which reads as follows:

c) Caption. Each paper served or filed shall begin with a caption
setting forth the name of the court, the venue, the title of the action,
the nature of the paper and the index number of the action if one has
been assigned. In a summons, a complaint or a judgment the title shall
include the names of all parties, but in all other papers it shall be
sufficient to state the name of the first named party on each side with
an appropriate indication of any omissions.  N.Y. C.P.L.R. 2101 (McKin-
ney).

See also 22 NYCRR section 202.5(d) 
1) WHICH READS AS FOLLOWS:

" IN ACCORDANCE WITH CPLR 2102(C), A COUNTY CLERK AND A CHIEF CLERK OF
THE SUPREME COURT OR COUNTY COURT, AS APPROPRIATE, SHALL REFUSE TO
ACCEPT FOR FILING PAPERS FILED IN ACTIONS AND PROCEEDINGS ONLY UNDER THE
FOLLOWING CIRCUMSTANCES OR AS OTHERWISE PROVIDED BY STATUTE, CHIEF
ADMINISTRATOR'S RULE OR ORDER OF THE COURT:

(II) THE SUMMONS, COMPLAINT, PETITION, OR JUDGMENT SOUGHT TO BE FILED
WITH THE COUNTY CLERK CONTAINS AN "ET AL" OR OTHERWISE DOES NOT CONTAIN
A FULL CAPTION;

(2) SEE DOE V. ROMAN CATH. ARCHDIOCESE OF NEW YORK, 64 MISC. 3D 1220(A),
117 N.Y.S.3D 468 (N.Y. SUP. CT. 2019) WHERE JUSTICE RUDERMAN QUOTED
VARIOUS AUTHORITIES ON THE REASONS WHY NAMES SHOULD NOT BE ANONYMOUS:  :
"IT IS ELEMENTARY THAT THE PRIMARY FUNCTION OF A PLEADING IS TO APPRISE
AN ADVERSE PARTY OF THE PLEADER'S CLAIM ... ABSENT SUCH NOTICE, A
DEFENDANT IS PREJUDICED BY ITS INABILITY TO PREPARE A DEFENSE TO THE
PLAINTIFFS ALLEGATIONS" (COLEY MANDELL FOOD STORES, INC., 93 NY2D 34, 40
(1999) (INTERNAL QUOTATION MARKS AND CITATIONS OMITTED)). "THE RATIONALE
FOR THE DISCLOSURE OF A PLAINTIFFS NAME IN A COMPLAINT OR PETITION IS
GROUNDED IN THE BASIC DUE PROCESS RIGHTS OF NOTICE AND AN OPPORTUNITY TO
BE HEARD" (3B CARNIODY-WAIT 2D § 28:6) (NOTE: ONLINE TREATISE). MORE-
OVER, CPLR 2101 REQUIRES THAT THE CAPTION OF A SUMMONS AND COMPLAINT
INCLUDE THE NAMES OF ALL PARTIES (SEE 22 NYCRR § 202.5 (D) (1) (II);

(3) SEE  
E.K. V. NEW YORK HOSP.-CORNELL MED.  CTR., 158 MISC. 2D 334,
336, 600 N.Y.S.2D 993, 994 (SUP. CT. 1992), WHERE THE COURT IN AN ACTION
AGAINST A HOSPITAL AND ITS EMPLOYEE FOR ALLEGED WRONGFUL DISCLOSURE OF
MENTAL ILLNESS TREATMENT RECORDS TO PROTECT PLAINTIFF SUFFERING THE
"STIGMA AND DISCRIMINATION" FROM HAVING THE RECORDS OF HER MENTAL
ILLNESS PUBLICLY VIEWABLE, ALLOWED THE PLAINTIFF TO PROCEED AS E.K.  AND
ORDERED THE COUNTY CLERK TO ENTER THE PLAINTIFF'S NAME IN THE CAPTION AS
E.K. DESPITE THE REQUIREMENTS OF CPLR § 2101(C) CITED BY THE DEFENDANTS.
IN THAT CASE, THE PLAINTIFF HAD PROVIDED THE HOSPITAL WITH ACTUAL NOTICE
OF HER IDENTITY BY LETTERS DETAILING THE ALLEGATIONS OF THE COMPLAINT
AND THE DATES SHE SOUGHT TREATMENT AND WHERE AN EMPLOYEE OF THE HOSPITAL
COULD BE SAID TO HAVE HAD CONSTRUCTIVE KNOWLEDGE OF PLAINTIFF'S IDENTITY
SINCE THE HOSPITAL HAD KNOWLEDGE AND BOTH DEFENDANTS WERE REPRESENTED BY
THE SAME LAW FIRM.

THIS BILL WOULD MAKE CLEAR THAT ANONYMOUS SURNAMES IN CAPTIONS ARE
REQUIRED, NOTWITHSTANDING COURT RULES OR PROVISIONS IN THE CPLR REQUIR-
ING CLERKS TO SHOW PARTIES' NAME IN CAPTIONS. RATHER THAN MERELY PROHIB-
ITING THE CLERK FROM SHOWING THE PARTIES' NAMES IN "ANY DOCUMENT, INDEX
OR MINUTES AVAILABLE TO THE PUBLIC," AS IN THE 2023 VERSION OF THE
PROPOSAL, THE BILL WOULD NOW PROHIBIT THE CLERK FROM SHOWING THE
PARTIES' SURNAMES IN "ANY CAPTION, DOCUMENT, INDEX OR MINUTES AVAILABLE
TO THE PUBLIC."

DESPITE EFFORTS TO ENCOURAGE FILERS TO APPLY BY LETTER APPLICATIONS FOR
COURT ORDERS TO HAVE ANONYMOUS CAPTIONS IN CPSA MATTERS, ATTORNEYS DO
NOT ALWAYS DO SO. IN SUPREME COURT ACTIONS, AT PRESENT, THE ONLY WAY FOR
A LITIGANT TO ENSURE THAT NAMES OF THE PARTIES OR CHILD WILL NOT BE
REVEALED IN THE CAPTION OF A DOCUMENT IN THE PROCEEDINGS IS BY SUBMIT-
TING A REQUIRED LETTER APPLICATION FOR AN ANONYMOUS CAPTION IN ALL
PUBLICLY VIEWABLE CASE LISTINGS. A MODEL SAMPLE LETTER APPLICATION IS
POSTED ON NYSCEF AND IS AVAILABLE ON THE COURT'S DIVORCE RESOURCES
WEBSITE AT  
LETTER.APPLICATION.PDF (STATE.NY.US), BUT MAY ALSO BE
SUBMITTED IN HARD COPY. ONCE THE APPLICATION IS APPROVED BY THE COURT,
THE COUNTY CLERK OR SURROGATE'S COURT CLERK IS AUTHORIZED NOT TO
DISCLOSE THE NAME OF THE CHILD OR ANY PARTY IN THE CAPTION ON ANY DOCU-
MENT PUBLICLY VIEWABLE.

THE BILL WILL MAKE THE LETTER APPLICATION UNNECESSARY AND ENSURE THAT
PARTIES' SURNAMES WILL NOT APPEAR IN ANY DIVORCE CASES.

THE BILL WILL ALSO PROMOTE COURT EFFICIENCY. USE OF THE LETTER APPLICA-
TION REQUIRES AN APPLICATION IN EVERY CASE AND WASTES JUDICIAL RESOURCES
AS WELL AS LITIGANTS' TIME AND IS NOT ALWAYS SUBMITTED AS NOTED ABOVE.
IT WOULD BE FAR MORE EFFICIENT AND EFFECTIVE TO AMEND THE STATUTE AS
PROPOSED. THE PROPOSAL WOULD ALLOW THE COUNTY CLERK (AS THE CLERK OF THE
SUPREME COURT) OR THE SURROGATE'S COURT CLERK WHO RECEIVES THE FILES NOT
TO DISPLAY THE NAME OF THE CHILD OR PARTY IN ANY CAPTION, DOCUMENT,
INDEX OR MINUTES AVAILABLE TO THE PUBLIC.

THE BILL LIMITS THE SEALING PROVISIONS TO SURNAMES ONLY IN ORDER TO MAKE
IT EASIER TO SEARCH RECORDS WITHOUT ENDANGERING CONFIDENTIALITY.

IT SHOULD BE NOTED THAT THE ISSUE OF ANONYMOUS CAPTIONS IS AN ISSUE IN
SUPREME COURT AND SURROGATE'S COURT AND NOT FAMILY COURT BECAUSE IN
FAMILY COURT THERE IS NO PUBLICLY AVAILABLE RECORD OF THE NAMES OF THE
PARTIES. BUT FAMILY COURTS ARE INCLUDED IN THE PROPOSAL JUST IN CASE
PRACTICE SHOULD CHANGE IN THE FUTURE WITH E-COURTS.

THIS BILL WILL ENSURE CONFIDENTIALITY OF HIGHLY INTIMATE PRIVATE INFOR-
MATION IN PARENTAGE PROCEEDINGS, WHILE PRESERVING JUDICIAL RESOURCES AND
PROMOTING EFFICIENCY.

 
PRIOR LEGISLATIVE HISTORY:

A BILL CONTAINING THE PRIOR VERSION OF THE PROPOSAL WITHOUT THE EXPRESS
CAPTION LANGUAGE WAS INTRODUCED AS
S.5107-B(HOYLMAN-SIGAL)/A.4921-B(PAULIN) AND PASSED THE SENATE IN 2023,
BUT DID NOT PASS THE ASSEMBLY. IT HAS BEEN REINTRODUCED IN 2024.

ANOTHER BILL CONTAINING THE PRIOR VERSION OF THE PROPOSAL WITHOUT THE
EXPRESS CAPTION LANGUAGE WAS INTRODUCED IN 2023 AS 5.7749 KRUEGER AND
REINTRODUCED IN 2024.

 
FISCAL IMPLICATIONS:

THIS BILL WOULD HAVE NO MEANINGFUL STATE FISCAL IMPACT.

 
EFFECTIVE DATE:
THIS BILL WOULD TAKE EFFECT IMMEDIATELY.