FAMILY LAW ARTICLES

The Reason for This Rule Has Expired.

Most court files are maintained as public records.

In our Family Law courts, all records are deemed public unless there is a compelling reason to seal the record. See California Rules of Court, Rule 2.550(c).

As a matter of law, your divorce files are public record. The court may order certain documents to be placed in a sealed portion of the file, but that is the vast minority of documents. Juvenile records or a custodial evaluator’s report will be  sealed from the public eye.  But other things: the ages and dates of birth of your children, your reasons for your selected date of separation, your financial condition, even your medical condition is often in the public court file in a dissolution proceeding.

I don’t intend to argue with the legislative policy of the State of California concerning the preference for public court records.  I do question the reasons for continuing to require paternity cases – adjudication of custody/visitation of a child born to unmarried parents – to be sealed as a matter of public policy. The reason for that rule has ceased to exist.

In 1973, California’s Civil Code section 7014 continued the 1938 law providing that court records involving a determination of parentage of a child of unmarried parents must be maintained by the courts as confidential, meaning “sealed” – accessible only to the parties and their attorneys of record. In 1992, this became Family Code section 7643, without substantial changes. The legislative policy behind the sealing of these records in paternity cases was because of the stigma attached, at that time, to “illegitimate” children, otherwise known as “children born out of wedlock.”

The Perceived Stigma No Longer Exists.

In 1940, less than 1% of children in America were born out of wedlock. In 1973, that had risen to approximately 9%. With 1992’s incorporation of this Civil Code provision into the Family Code as Section 7643, came the next time the legislature may have had a reason to examine this law. There are no immediately evident writings to indicate that any thought was, in fact, given to the reasons for the statute to travel to the Family Code: even then, as of 1992, less than 33% of children in the U.S. were born to unmarried parents.

By 2007, nearly 60% of children in America were born to unmarried parents. The most recent data from the Centers for Disease Control shows a drop in unmarried birth rates from 2007-2013, but that percentage is still nearly 45%. In 2013, nationwide, over 1.5 MILLION children were born to unmarried parents.

The only good statistic I could find that is California-specific indicates that, as of 2013, unmarried births in California exceeded 40%. That’s over 40% of over 500,000 children born in California in 2013: that means, at a minimum, in 2013, more than 204,000 children were born out of wedlock in California. Nationwide, 1,595,873 total children were born in 2013; of that number, more than 654,900 children were born out of wedlock in all fifty (50) states. Thus, California ALONE saw, in 2013, nearly one-third of the entire nation’s unmarried births.

I submit to you that this substantial demographic shift indicates, quite clearly, that there no longer remains any stigma associated with children born out of wedlock. Parents no longer keep their unmarried status a secret upon the birth of their child: from prenatal care through the child’s 18th birthday, the State of California is involved in and aware of the child’s status as having been born to unmarried parents, as is nearly everyone within the child’s educational and social circles.

Paternity Cases Should Be Maintained as Public Files.

California’s Civil Code Section 3510 states:  “When the reason of a rule ceases, so should the rule itself.”

There is no longer any social stigma associated with children born to unmarried parents. The legislature’s reason for maintaining paternity actions as sealed files has expired.  Certainly the courts could find better use for those funds than maintaining sealed records in the large numbers of parentage actions we now see in the family court system. 

Even the Probate Code has, over the last seventy (70) years, acknowledged this shift. Don’t you think it’s time the Family Code did so, as well?

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Statistics from online tables and graphs from Centers for Disease Control and California Department of Public Health.