THE PAST, PRESENT, AND FUTURE OF CLOSED HEARINGS AND SEALED FILES IN FAMILY COURT
A legal note from Marshal Willick about the destruction and restoration of a right to privacy in Family Court, as to both the sealing of files and the closing of hearings, who it applies to, how the new law applies to existing cases, and what litigants, and their attorneys, should expect going forward.
I. CLOSED HEARINGS
Some version of NRS 125.080 has been on the books since 1865; it was last updated in any way in 2007. The statute permitted closed hearings in divorce trials upon the request of any party. Its purpose was to provide a measure of privacy to people dealing at trial with the most intimate and sensitive topics in their lives, and was written in an era when unmarried people did not have custody cases and some children were still considered “illegitimate,” so on its face it only applied to “divorce” cases.
In 2024, in Falconi v. Eighth Jud. Dist. Ct., 140 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 8, Feb. 15, 2024), the Nevada Supreme Court decided, on a 4 to 3 vote, that the statute was unconstitutional because all court hearings are presumptively open and the statute did not permit the trial court to exercise its discretion to decide whether closure was warranted.
The dissent, correctly, argued that family court was inherently different, coming from an entirely separate legal history starting in the ecclesiastical courts of England, and that the Nevada Legislature had recognized the special privacy protections to be given family law litigants since 1865.
There was massive confusion in the district courts. One judge, in a case called Nester, said that given Falconi he could not close hearings under any circumstances, since the Supreme Court had struck down the closed hearing rule.
The Supreme Court reversed that decision in Nester v. Dist. Court (Gamble), 141 Nev. Adv. Op. 4 (Jan. 30, 2025), saying that a district court does have discretion to close hearings, by applying its lengthy and somewhat rambling opinion in Falconi.
Today, about half of custody cases are between people who are not married, and property cases between unmarried cohabitants constitute a large and growing percentage of the disputes between couples who are splitting up. So the statute provides equal protection of the procedural rules to all family court litigants in all family law cases covered by Title 11 of NRS, including divorces, domestic partnerships, adoptions, guardianships, terminations of parental rights, premarital agreements, and other cases. The new statute formally repealed existing NRS 125.080 and NRS 125.110.
Hearings are presumptively open. A closing decision is triggered by a party’s motion, court’s motion, or media request to decide whether part or all of a proceeding should be closed if “closure is necessary to serve a compelling interest.”
The Legislature set out a non-exhaustive list of factors to determine whether there is a “compelling interest”:
1. Presumption of openness.
2. Best interest of any child.
3. Whether permitting observation or recording of the hearing creates a “substantial risk” of violating any federal or state law, regulation, or court rule relating to disclosure of personal identifying information that cannot be mitigated by sealing court records, including without limitation:
a. Health information defined by 45 C.F.R. § 160.103.
b. Educational record under 20 U.S.C. § 1232g and its regulations.
4. Whether absent closure there is a substantial risk that:
a. A party or child may suffer harassment, indignity, undue embarrassment, or other physical or emotional harm.
b. The fundamental right of privacy of any person will be violated.
As some have noted, some of these factors will be present in every family court case.
After considering factors as to whether closure is necessary to serve a compelling interest, a court is to make written findings:
1. Whether a substantial probability that, absent closure, the compelling interest will be harmed.
2. Whether there are alternatives to closure that would adequately protect the compelling interest.
3. Whether the closure is narrowly tailored to protect the compelling interest.
If closing a hearing is ordered, the court shall direct that all or part of the proceeding be closed and except as specifically provided, all persons must be excluded from court or chambers except officers of the court, the parties, counsel for the parties and their staff, witnesses, including expert witnesses, guardians of the parties, and persons related to parties within the third degree of consanguinity (basically, anyone related through a common ancestor within three steps separating them on a family tree, such as aunts, uncles, nieces, nephews, great-grandparents, and great-grandchildren).
However, upon oral or written motion of a party or its own motion, the court may exclude any of those people from the hearing. And if the court determines that the interests of justice or best interests of a child would be served, the court may permit a person to remain, observe, and hear notwithstanding any request by a party that the proceeding be closed.
Except as otherwise provided by specific statute, court rule, or court order, a transcript, audio recording or electronic or video record of any closed portion of a hearing or trial is confidential and not open to inspection or copying by persons except the parties, their counsel, and counsel’s staff and experts.
No person with access to such record shall distribute or facilitate its distribution, and any person violating that provision shall, upon notice, cease and desist such conduct, and immediately remove the record from public access, which includes broadcasting, televising, recording, and photographing.
The bottom line to the revised closed hearing rule is that, for all family court cases, hearings are to be open unless a court exercises its discretion to find a compelling reason to close them. Once proceedings are closed, they are to remain confidential and not to be broadcast or published in any form in defiance or evasion of the closing order. If published they are to be taken down upon notice.
There are those who claim that the statute and court rules “cannot affect” non-parties to cases, but that claim is nonsense. Beyond the closed hearing and sealed file rules, for well over a century, wage assignment orders, subpoenas, injunctions, and many other court processes have required non-parties to act or cease acting in compliance with court orders and rules. Courts should be at least as vigilant in protecting the privacy of parties and their children by the full force of their contempt powers and inherent authority.
II. SEALED FILES
Almost 100 years ago, the Nevada Legislature enacted the “sealed files rule,” NRS 125.110. It has been on the books since 1931, and was slightly updated in 1963. In it, the Legislature struck a balance between public access to divorce files and the privacy rights of divorce litigants and their children, by making the Complaint, Answer, Reply, and all court orders including the final Decree open to public inspection, while all other papers could be sealed as a matter of right upon the request of either party.
Like the closed hearing statute, it did not consider the possibility that unmarried people would be in family court, and the terminology was written before there was such a thing as a video record, or broadcasting, or the internet.
The same people who targeted the closed hearing rule attacked the sealed file rule, claiming that because it allows an order to be entered at the request of a party, it should be struck down so that no one has any ability to protect their financial, medical, or any other records in their divorce cases.
Like the closed hearing rule, the new sealed file rule applies equally to all family court litigants in all family law cases covered by title 11 of NRS, including divorces, domestic partnerships, adoptions, guardianships, terminations of parental rights, premarital agreements, and other cases.
It updates and replaces existing NRS 125.110, keeping the balance between records open to inspection, and what can be kept private, from existing law. Automatically and always open to inspection are the summons and proof of service, the affidavit for publication if any, all pleadings, any decree or other order, including, an order directing the publication of a summons, and any judgment, including, without limitation, a judgment of default.
It is more specific, however, as to the records not open to inspection except by court order for good cause shown, including financial disclosure forms, documents, records, or evidence filed under seal, documents sealed by court order, confidential exhibits, child custody evaluations, medical records, including, without limitation, any medical, psychiatric or psychological evaluation or report, and any documents prohibited by federal or state law or regulation or court rule from being copied or distributed.
Everything else is presumptively open to inspection, but the court can seal or redact any part of that “everything else” if it exercises its discretion to find a compelling interest that sealing or redaction outweighs the public interest in access, on its own motion or at the request of a party.
The statute specifically declares that any “personal identifying information” that the Nevada Legislature or the federal government requires by law, regulation, or court rule be kept confidential is a compelling interest. That term is given the definition set out in NRS 205.4617:
1. Except as otherwise provided in subsection 2, “personal identifying information” means any information designed, commonly used or capable of being used, alone or in conjunction with any other information, to identify a living or deceased person or to identify the actions taken, communications made or received by, or other activities or transactions of a living or deceased person, including, without limitation:
(a) The current or former name, driver’s license number, identification card number, social security number, checking account number, savings account number, credit card number, debit card number, financial services account number, date of birth, place of employment and maiden name of the mother of a person.
(b) The unique biometric data of a person, including, without limitation, the fingerprints, facial scan identifiers, voiceprint, retina image and iris image of a person.
(c) The electronic signature, unique electronic identification number, address or routing code, telecommunication identifying information or access device of a person.
(d) The personal identification number or password of a person.
(e) The alien registration number, government passport number, employer identification number, taxpayer identification number, Medicaid account number, food stamp account number, medical identification number or health insurance identification number of a person.
(f) The number of any professional, occupational, recreational or governmental license, certificate, permit or membership of a person.
(g) The number, code or other identifying information of a person who receives medical treatment as part of a confidential clinical trial or study, who participates in a confidential clinical trial or study involving the use of prescription drugs or who participates in any other confidential medical, psychological or behavioral experiment, study or trial.
(h) The utility account number of a person.
2. To the extent that any information listed in subsection 1 is designed, commonly used or capable of being used, alone or in conjunction with any other information, to identify an artificial person, “personal identifying information” includes information pertaining to an artificial person.
For the first time, the statute specifies the conditions under which material can be un-sealed once they have been sealed, including the stipulation of the parties, the court’s own motion for good cause, or the motion of a party for good cause shown.
The statute provides factors for determining good cause to unseal, including federal or state law requiring confidentiality, whether federal or state law or regulation or court rule provides that any information in the court record is not a public record, the interests of the party seeking to unseal the record, and whether unsealing the record would create a substantial risk that a party to the proceeding or child involved in the proceeding may suffer harassment, indignity, undue embarrassment or any other physical or emotional harm.
The statute defines “court record” as including any document, information or exhibit maintained by a court in connection with a family law proceeding.
Finally, amending Chapter 205 of NRS (Crimes Against Property), the statute provides some teeth to the rest of the bill, by providing penalties for those who violate statutes requiring confidential information remain private.
Specifically, if anyone “willfully and intentionally” posts or displays in any public manner personal identifying information required to be kept confidential by federal or state statute, regulation, or court rule, it is a category D felony under NRS 193.130.
III. APPLICATION OF THE CASELAW AND THE STATUTE
Some wild claims have been made about application of the Falconi decision. Some even claimed that it “automatically unsealed all cases,” which is utter nonsense.
Falconi did not address the former sealing statute, NRS 125.110, at all. It only concerned the former closed hearing rule, NRS 125.080, and two local rules. The companion cases, which sought to attack and invalidate multiple other rules and statutes, were all rebuffed.
As noted in the Falconi decision itself, it is impossible to retroactively open a hearing that has already occurred, which is why the Nevada Supreme Court only entertained the case under the principle that while the application itself was moot, the subject was one capable of repetition but evading review. The concept of retroactive application of the case under the general principle that a constitutional finding will be given retroactive effect is therefore baseless. See, e.g., 1 William J. Rich, Modern Constitutional Law § 1: 9 (3d ed. 2014) (analyzing the progression of the retroactivity debate in Supreme Court jurisprudence). Cases that were sealed under prior law remain sealed.
The new statute, however, is a remedial statute which is to be given “a very liberal construction.” Whise v. Whise, 36 Nev. 16, 131 P. 967 (1913). As the Nevada Supreme Court has repeatedly stressed, “statutes with a protective purpose should be liberally construed in order to effectuate the benefits intended to be obtained.” Administrator of the Real Estate Educ., Research & Recovery Fund v. Buhecker, 113 Nev. 1147, 945 P.2d 954 (1997). Remedial statutes may be applied retroactively as necessary to permit state courts to remedy harsh results, cure defects, or provide further remedies. See, e.g., Thorpe v Thorpe 367 NW2d 233 (Wis. Ct. App. 1985).
For this reason, the new statute, which is the first legislation to ever permit or regulate the unsealing of cases, should apply to applications brought to unseal cases decided before or after enactment of the current statute. Notably, third party applications to unseal cases are not included in the categories of motions that may be brought to unseal a case, and should be summarily denied accordingly.
IV. CONCLUSIONS
The right of privacy in parentage, custody, and divorce matters has been woven into Nevada law since the founding of the State and re-affirmed in legislative enactments and court decisions repeatedly since then.
The new statute intends to preserve the public policy determinations made by the Nevada Legislature in 1864, and 1931, and many times since then, that the right of privacy is a fundamental right which is a necessary component of the well-established right to personal liberty, which the Nevada Constitution guarantees is “inalienable.”
The statute brings those public policy determinations into the 21st century, treating married and unmarried people equally in terms of their rights to privacy, and accommodating the newly-found “presumption of openness,” by providing for application of appropriate judicial discretion in both the closing of hearings and the sealing and unsealing of files.
It provides structure for the district courts to make those determinations, and properly respects the multitude of state and federal laws dealing with what information is open to public dissemination, and what information is required to be kept confidential, giving the courts a means to enforce their orders closing hearings and sealing files.
There will always be those who seek to use court files “for improper purposes, such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). It is reasonable, and fair, and right, that Nevada has taken steps to limit such misuse of family court hearings and records.
V. QUOTES OF THE ISSUE
“Saying that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about freedom of speech because you have nothing to say.” Jean-Michel Jarre.
“Once you’ve lost your privacy, you realize you’ve lost an extremely valuable thing.” Billy Graham.
“Of all the surrounding circumstances which might or could characterize this offense against marital peace and happiness, publicity is the most essential.” Kelly v. Kelly, 18 Nev. 49, 1 P. 194 (1883).
“The common law rule . . . demonstrates a respect for family privacy and parental autonomy.” Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
“Our cases leave no doubt that parents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest – absent exceptional circumstances – in doing so without the undue interference of strangers to them and to their child.” Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000).
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