The case was captioned Matter of Walsh v. Russell. Docket Numbers V-7641-18 and O-12635-19. Supreme Court of the State of New York, Appellate Division, Second Judicial Department. Justices Barros, Miller, Genovesi, and Wan.

Steve’s attorney was Jason A. Advocate, of Advocate, LLP. Tara’s attorney was Christopher S. Weddle. The Attorney for the Child was Donna M. Genovese.

The appeal was from the order of the Family Court, Westchester County, dated February 2, 2022 — the order signed by Judge Michelle I. Schauer, who in a separate case had been accused of retaliating against a disabled father for asserting his federal rights. The Second Circuit had ruled that the court system violated the ADA in that case. The judge who issued Steve’s gag order had already been accused of punishing a father who challenged the system.

The procedural history was this.

In July 2018, Tara commenced a custody proceeding seeking sole legal and physical custody of the child. She subsequently commenced a family offense proceeding against Steve. In October 2021, the Attorney for the Child moved to prohibit Steve from posting, uploading blogs, and displaying likenesses of the child regarding the proceedings — and from disparaging the child’s relatives in any and all public forums. The motion also sought to direct Steve to erase, deactivate, and delete all existing postings, blogs, and likenesses of the child.

Steve failed to oppose the AFC’s motion. He failed to appear on the return date.

On December 3, 2021, the Family Court granted the AFC’s motion upon the father’s default. A default in family court operates as a forfeiture: if a party does not respond, the court treats the silence as consent and grants whatever the opposing side requested. The mechanism exists to keep cases moving. It was never designed as a tool for obtaining speech restrictions with constitutional implications — but design and use are not the same thing.

In January 2022, the Family Court held a hearing on the mother’s petitions. Steve did not appear in person at the hearing. But his attorney appeared on his behalf. His attorney made objections. His attorney cross-examined the mother.

On February 2, 2022, the Family Court entered an order that granted the custody petition, awarded Tara sole legal and physical custody, and prohibited Steve from posting, uploading blogs, or displaying likenesses of the child regarding the proceedings. The order directed Steve to erase, deactivate, and delete “any existing blogs and likenesses.”

Steve appealed.

The Appellate Division issued its decision on March 22, 2023.

Two holdings. Each dismantled a piece of the structure the Family Court had built.

The first holding addressed the default.

Tara and the Attorney for the Child had argued that the order was entered on Steve’s default — that he had failed to appear and therefore waived his right to challenge it. The Appellate Division disagreed.

The court found that although Steve failed to appear in person at the January 2022 hearing, his counsel appeared on his behalf and participated in the hearing. His counsel made objections. His counsel cross-examined the mother. The order was not entered upon the father’s default.

The precedent was clear. When an attorney appears on behalf of a party, makes objections, and participates in cross-examination, the party is not in default. The court cited Matter of N. [Fania D.–Alice T.], 108 A.D.3d 551, and Matter of Newman v. Newman, 72 A.D.3d 973. The law was not ambiguous.

The Family Court had declared a default. The Appellate Division said the default did not occur.

The sentence is worth examining for what it does not say. The court did not rule that the default was improper, or excessive, or subject to reconsideration. It ruled that the default did not occur — that the event the lower court treated as having happened was an event that had not taken place. His attorney was present. His attorney spoke. His attorney questioned the opposing party under oath. In the law’s framework, these actions constituted appearance, and appearance is the antonym of default. The Family Court had constructed an absence where a presence had been standing, had built an order on that constructed absence, and the Appellate Division, sixteen months later, observed that the absence was not there. The lower court had not erred, exactly — to err implies a miscalculation, and what the lower court did was not miscalculate but misclassify, placing an attorney’s active participation in a category the law reserves for empty chairs.

The second holding addressed the speech restrictions.

The Appellate Division applied the constitutional standard for prior restraint. A prior restraint on speech is a judicial order that suppresses speech on the basis of its content and in advance of its actual expression. The party seeking such restraint bears a heavy burden of demonstrating justification for its imposition. The restrained speech must be likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. And an order imposing a prior restraint must be tailored as precisely as possible to the exact needs of the case. The standard exists because the First Amendment treats government suppression of speech as presumptively unconstitutional — the burden falls not on the speaker to justify speaking but on the government to justify silencing.

The Family Court’s order had directed Steve to erase, deactivate, and delete “any existing blogs and likenesses.” The Appellate Division found that this provision was not tailored as precisely as possible to the exact needs of the case. The restriction required the deletion of all existing blogs and likenesses — regardless of whether the blogs or likenesses related to the child, the mother, the mother’s family, or the proceedings. The order was overbroad.

The court modified the order. It substituted a narrower provision: Steve was directed to erase and delete existing blogs that referenced the proceedings or disparaged the child’s relatives, and likenesses of the child posted in connection with such blogs. The remaining restrictions — on posting about the proceedings or disparaging the child’s relatives — were affirmed as narrowly tailored.

The blanket erasure order was gone. The words “any existing blogs and likenesses” — the words that had been weaponized against journalists, circulated to employers, delivered to Michaelanne Petrella seventeen days before the order was even entered — had been struck by the appellate court as constitutionally deficient.

Steve was in a room when the decision arrived.

He read it. The language was technical — modification, substitution, affirmance in part — but the substance was not. The default that the Family Court had relied upon did not exist. The blanket deletion order was unconstitutional. Two holdings, each removing a piece of the foundation on which the custody order and the gag order had been built.

Evie was six years old. She had been living in the Walsh household — the household Brienne had described under oath, the household where CPS had been called, the household where a California jury had found the mother liable for battery with malice — for the entire duration of the appellate process. She was in first grade. She had lost her baby teeth. She had started reading. Every milestone Steve had missed was a milestone the system’s delay had taken from him — not through a single act but through the accumulation of recusals and reassignments and the particular patience of a process designed to outlast the people inside it.

The Appellate Division had removed the foundation. The default the Family Court had entered on December 3, 2021, did not exist as a matter of law. The blanket speech order the Family Court had issued on February 2, 2022, exceeded constitutional limits.

The Family Court did not modify its custody orders in response to the appellate decision. The reversal was published, indexed at 214 A.D.3d 890, entered into the body of law that lower courts are obligated to follow. And the court that had issued the orders the appellate panel found deficient treated the published reversal the way the institutional architecture of Westchester County had treated every other piece of documented evidence in this case — by continuing as if the document did not exist.

The custody order remained in effect. The child remained in New York. The rulings existed in the appellate record — indexed, published at 214 A.D.3d 890, available to any court that chose to examine them — and the Family Court that had issued the underlying orders did not act.

The remaining options were mapped: a motion in Family Court, a federal action, or both. Each path required time and the endurance of a person who had already spent years inside a legal system that responded to documented wrongdoing with procedural delay.

Two appellate courts had now ruled.

In California, the First Appellate District had affirmed the jury verdict. The battery finding was permanent. The determination that Tara Walsh had committed battery with fraud and malice was embedded in the civil record — indexed, final, affirmed on appeal.

In New York, the Second Department had struck down the gag order and found that the default did not occur. The orders that had been built on that default — the custody arrangement, the speech restrictions, the deletion requirement — rested on a foundation the appellate court said was not there.

Both records existed simultaneously. The California record said Steve had been battered. The New York record said the Family Court’s order was constitutionally infirm and procedurally deficient. And in the space between those two records — in the gap between what the appellate courts had found and what had changed as a result — the custody order remained. The child remained in the household.

The appellate courts had spoken. The Family Court had not listened.

Being right in two jurisdictions is not the same as being restored in one.