No Kids in Court?

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WRAL reports that a district court judge told a Johnston County woman not to bring her 3-month-old baby to court. Can a judge do that?

Facts. According to WRAL, the story began in traffic court. A woman was waiting in the back of the courtroom, breastfeeding her baby. The baby was covered by a sling. A deputy told her that no children under 12 were allowed in the courtroom. The woman’s husband was able to take the baby outside the courtroom. When the woman returned to the courtroom and had the opportunity to talk with the judge about her case, the judge told her not to bring the baby back to court. The woman reportedly replied that if she left the baby at home, the baby could not eat, as the baby will not drink from a bottle. The judge reportedly responded that was not the judge’s problem and that if the woman made more excuses, the judge would take the baby and hold the mother in contempt.

Again, these are the facts as reported by WRAL. Media reports are not always accurate. But whatever happened in this particular instance, what’s the law on the general question of whether a judge may exclude young children from court?

Law. The law regarding a judge’s authority to exclude children from court is not very clear. As far as I know, no North Carolina case, statute, or provision of the Code of Judicial Conduct addresses the issue directly. Several legal provisions are obliquely relevant. For example, G.S. 15A-1033 state that “[t]he judge in his discretion may order any person other than a defendant removed from a courtroom when his conduct disrupts the conduct of the trial.” And the Code of Judicial Conduct requires that judges “respect and comply with the law,” Canon 2(A); that judges “maintain order and decorum,” Canon 3(A)(2); and that judges be “patient, dignified and courteous” to litigants and others, Canon 3(A)(3). Closing a courtroom altogether is permitted only in narrow circumstances, at least during criminal trials, see generally Weaver v. Massachusetts, __ U.S. __, 137 S.Ct. 1889 (2017), but excluding children is not the same thing as excluding everyone. Finally, in the particular circumstance that inspired this post, G.S. 14-190.9 may be pertinent. It is the indecent exposure statute and it provides in part that “[n]otwithstanding any other provision of law, a woman may breast feed in any public or private location where she is otherwise authorized to be.” Of course, that provision won’t be relevant to most children in court.

There is some case law on point from other jurisdictions. For example, In re Judicial Qualifications Commission Formal Advisory Opinion No. 239, 794 S.E.2d 631 (Ga. 2016), contains a discussion of whether excluding children from court violates constitutional guarantees of public access. The opinion notes that some Georgia judges prohibit court attendance by children, by people unrelated to litigants, or even by all people other than litigants and their attorneys. The court states that “[a]ll of the above practices are, generally, improper” because although judges have the authority “to maintain the integrity and decorum of the courtroom” and are not expected to permit “loud or unruly children or adults to disrupt court proceedings,” the law “requires that such disruptions to public proceedings be dealt with on a case-by-case basis.” Yet later in its opinion, the court waffles on the question:

[W]hether children are constitutionally entitled to the same extent as adults to attend court seems to be an open and debatable question. Indeed, although some courts have found that the exclusion of children in some circumstances may violate the right of public access, see, e.g., United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012) (exclusion of defendant’s seven-year-old son), a few courts have concluded otherwise, even when the children excluded had a close relationship with a party, see, e.g., United States v. Perry, 479 F.3d 885, 890–891 (II) (A) (D.C. Cir. 2007) (exclusion of eight-year-old son of accused), and when children as a class were excluded. See, e.g., State v. Lindsey, 632 N.W.2d 652, 660–661 (II) (Minn. 2001) (blanket exclusion of children, which led to removal of two children of unknown age and unknown relationship to the accused). Given the current state of the law, fair-minded jurists may reasonably disagree about the extent to which the constitutional guarantee of the right of public access to judicial proceedings requires the admittance of children of tender years, and decisions to admit or exclude children do not, without more, implicate [Georgia’s Code of Judicial Conduct].

See also United States v. Short, 41 M.J. 42 (U.S. Ct. Mil. App. 1994) (the defendant’s mother-in-law entered the courtroom with the defendant’s three children, all under three years old; the judge ordered them out, stating that “[t]his is not a waiting room for babies”; on appeal, the defendant contended that this violated his Sixth Amendment right to a public trial; the reviewing court disagreed, finding that a judge may “exclude specific persons from the courtroom” if the judge has “reason to believe that persons are disorderly and may continue to be so”; here, “[a]lthough the transcript does not affirmatively reflect it, the conduct and demeanor of these very young children may well have given the military judge reason to believe that their continued presence may be disruptive”; however, the appellate court criticized the trial judge for being “less than courteous” and indicated that the judge should have made specific findings regarding the reason for the exclusion of the children).

In the absence of definitive law, some North Carolina judges have adopted individual policies regarding the presence of children. (I skimmed the local rule book and did not immediately see any local rules on point, but please let me know if I missed something.) These policies may be posted on the courtroom door or announced at the beginning of a session. It is not uncommon for judges to prohibit young children from attending court, whether to minimize disruption or to prevent the children from being exposed to unpleasant affairs. In Mecklenburg County the burden is reduced by the presence of Larry King’s Clubhouse, a free drop-in daycare for children “whose family members are conducting business at the courthouse or serving as jurors.” I don’t know whether other counties offer anything similar.

Conclusion. Given the state of the law, it is hard to reach a firm conclusion on whether a judge may categorically prohibit young children from coming to court. However, a cautious jurist might choose to recommend, rather than require, that parents not bring their young children to court, or to grant exceptions to a general rule barring young kids. In fact, even the Supreme Court of the United States says that children may attend court, though “given the formal nature of Court sessions, it is not recommended for infants or small children.” The proceedings may sometimes be too dull even for the Justices, so this is probably sound advice.

11 comments on “No Kids in Court?

  1. More often than not, I’ve always seen judges exclude children from the courtroom.

  2. Assuming the judge’s comments to the mother were accurately reported, the contempt was his own, not hers. And your research to determine, finally, that no official rule, statute, or case decision appears to prevent him from barring her from the Courtroom, or even the Courthouse, misses the point that common decency certainly does.

    His election to that office gave him no right to be a dictatorial ass, to assume the whole world was offended by her breastfeeding, as he must have been, or to threaten “to take her baby from her” for making a civil explanation as to why she had had to bring the baby with her. His reported remarks were simply outrageous.

    Judges are bound to be “patient, dignified, and courteous” to those before them. This judge failed that standard miserably, and it is a shame you did not go ahead and say so.

    • “Again, these are the facts as reported by WRAL. Media reports are not always accurate. “

      • Agreed.

        Bob Epting

    • I was in the courtroom, and WRAL has it wrong – not that they would let facts get in the way of a dramatic headline! The judge was appropriate with her; her responses were less than respectful.

  3. The facts that you have reported are not correct. The media never talked with the other people in the courtroom. The Judge continued the case for both parties, the woman was never in the courtroom with the child. The woman was upset because her husband got held in contempt for 5 hours because he would not stop talking. The reports are not accurate as to what the Judge said. It is amazing that the media never talked to the Deputy’s and other people who were present in the court room. The court was patient with the woman she was upset because her husband/friend got sent to jail because of his behavior in the courtroom. The Judge told her that when she came back to court she should try to find someone to keep the child, because the child is not allowed into the courtroom and that if the person with the child got convicted and sent to jail, then the child could be placed in the care of DSS unless they had another person with them to look after the child. It is SIMPLE do not bring your KIDS to the courtroom. I tell all my Clients never bring your children to the courtroom, NEVER. Children do not need to hear the things that happen in court. Do not bring your children to court thinking because you brought your children with you to court the Judge will not send you to jail, wrong, I have seen numerous cases were the parent came to court with just the child , parent got sent to jail, DSS had to take the child. The Issue is simple no child should ever be in a courtroom. We have loss all reason in America.

  4. Those who are in court frequently know exactly what happened. It’s strange how frequently child care falls through on probation day and the parent is facing revocation…

    • I offer my apologies to Jeff Welty, and to the Court, for my comments, which it now appears were based on inaccurate reporting of the events. I am glad to learn the reports were not so.

      Bob Epting

  5. Knowing the judge in question, I told my wife the WRAL report could not be an accurate depiction of what occurred. Jesse, I am glad you were there and can speak to what happened. Unfortunately, a judge caught in this situation cannot wade into a public controversy and often has to rely on others to set the record straight.

    Rich Costanza

  6. I served with the judge in question, and have known him for many years. I didn’t believe the story when I saw it on WRAL. The accounts I have heard do not support WRAL’s reporting.
    Children have no place in the courtroom. Signs are posted in our courthouse indicating children are not to be in the courtrooms. WRAL owes the judge an apology.

  7. Rowan County has provided a child care center for probably 10+ years. It is used frequently and I think litigants appreciate the opportunity to concentrate on their case and not a child.