The “Brangelina” divorce is making headlines again on the heels of Angelina Jolie filing the parties’ temporary custody stipulation with the court, thereby making their agreement open to the public. The stipulation shows that Brad Pitt has weekly visitation with the parties’ six children, supervised by therapists.

Pitt immediately filed an emergency (“ex parte”) motion, asking the court to seal the divorce file in order to shield their children from “intense media coverage” and “worldwide public scrutiny.” Pitt declared, “I am extremely concerned that if court records are not sealed, information contained therein will cause irreparable damage to our children’s privacy rights.”

In Jolie’s responsive declaration, she called Pitt’s request a “thinly veiled attempt to shield himself, rather than the minor children, from the public view.” She also alleged that Pitt “simply appears to be trying to seal this case from the public record before he seeks visitation and/or child custody orders contrary to the minor children’s therapists’ recommendations and the parties’ current custody/visitation order.” The court denied Pitt’s emergency request but set the matter for a regular noticed hearing.

The desire for confidentiality in divorce proceedings can conflict with the public policy that legal proceedings must remain publicly open. The United States Supreme Court in Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 held that the press and the public have the right to attend criminal trials under the First Amendment. The California Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 held that these rights were equally applicable to all civil proceedings. The NBC Subsidiary holding was codified in California Rule of Court 2.550, which prohibits a court from sealing a file absent proof of extraordinary circumstances. Such proof must include facts that show:

• There is an overriding interest that overcomes the right of public access to the record;
• The overriding interest supports sealing the record;
• A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
• The proposed sealing is narrowly tailored; and
• No less restrictive means exist to achieve the overriding interest.

What defines an “overriding interest” is left to case law. However, the bar is set high: courts have found that the finances of the rich should not be sealed (In re Marriage of Burkle (2006) 135 CA4th 1045), but have found protecting minor victims of sex crimes; protecting witnesses from embarrassment or intimidation; and ensuring the anonymity of juvenile offenders in juvenile court are all overriding interests. (NBC Subsidiary, Inc.). Given these high standards, Pitt faces an uphill battle keeping this stipulation out of the public record and “Mr. and Mrs. Smith” won’t be leaving the public court anytime soon.

Sarah Van Voorhis and Ariel Sosna, both Certified Family Law Specialists, are founding partners of Van Voorhis & Sosna. Follow them on Twitter at
@VanVoorhisSosna.