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, signed by Judge Michelle I. Schauer. A separate disability-accommodation challenge had concerned proceedings before her: Marc Fishman’s lawsuit against court-administration defendants and her court attorney. The Second Circuit’s September 28, 2021 order affirmed dismissal of that suit; it did not find the court system liable for an ADA violation. Read the order, reproduced in the Supreme Court filing appendix, pp. 1–9.

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.

The Appellate Division later recounted that Steve had not opposed the AFC’s motion or appeared on its return date. His position on further conferences had been stated to Schauer on August 27: he would not attend more conferences, but he wanted the trial scheduled and would be there with counsel. “I will be present with an attorney at trial.”

On November 5, Schauer declared him in default and later granted the AFC’s motion against him, directing that a written order be submitted on notice. The resulting motion order was dated December 3, 2021. That was the default order. The January hearing and the February 2 custody and publication order were still to come.

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, and from disparaging the child’s relatives. 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. The February order was reviewable, and the blanket deletion command could not stand as written. The decision did not vacate the custody award.

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 mother and the Attorney for the Child had argued that the February order was a default order. The Appellate Division said it was not. The earlier December 3, 2021 order, entered on default, was a separate order.

The distinction mattered. Steve had not been in the hearing room, but his attorney had been there. His attorney spoke, made objections, and cross-examined the mother. The Appellate Division rejected the argument that the February order was entered on default. That opened the way to review the order; it did not erase the separate December default or undo the custody award.

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 command was gone. The words “any existing blogs and likenesses” had been deleted and replaced with a narrower requirement. Existing material still had to be removed if it fell within the substituted provision.

The formal result was modification and affirmance insofar as appealed from. The court rejected the default characterization and replaced the blanket deletion command. It also upheld the remaining speech restrictions. The result left Steve with a published ruling that limited the order, and with restrictions that still governed what he could publish.

Steve’s reading was that this was not an affirmance in any meaningful sense: the February order had been defended as a default order and was not one, and its blanket deletion command — the order’s real point, to him — had been replaced. The formal disposition and his assessment of its significance were different things.

Steve was in a room when the decision arrived. A computer on a table. March 22, 2023, a Wednesday. The opinion had been released — 214 A.D.3d 890 — and was waiting in his email, the published decision of the Appellate Division, Second Department, state of New York. He pulled up the PDF. Schauer was named as the judge whose order was under review. Donna M. Genovese appeared as the Attorney for the Child; Justice Genovesi, with a different spelling, was a member of the appellate panel. Light from the window or no light — the room’s temperature does not matter, only that a man whose family had spent years erasing documents was now looking at a document that could not be erased. Published. Indexed. Part of the permanent record.

He read it. The language was technical: modification, substitution, affirmance insofar as appealed from. The February order was not a default order. The blanket deletion command had been replaced by a narrower one: delete existing blogs that referenced the proceedings or disparaged the child’s relatives, and the child’s likenesses posted in connection with those blogs. The forward-looking restrictions stayed. The custody award was not vacated. Two holdings, and the practical limits of what they changed.

Evie was five 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 a separate punitive finding of malice, oppression, or fraud — for the entire duration of the appellate process. She was in preschool. 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 rejected the default characterization of the February 2, 2022 order. The blanket deletion command in that order could not stand as written. The December 3, 2021 default was not set aside by this decision.

The decision was published at 214 A.D.3d 890 — volume 214, page 890, the specific address where the case would live in every law library in the State of New York. The citation was permanent. Any lawyer in any New York court who wanted to look up the precedent on default and speech restriction would find it there, printed and shelved and indexed. The Appellate Division’s decision would sit on the shelf next to every other precedent. It would be available on Westlaw and Lexis. It would be citable. It would be binding on lower courts. The case that Schauer’s order had tried to erase — had directed erased from blogs, deleted from existence — now existed in a form that erasing was impossible. Published precedent. The permanent record. The place where the institutional architecture keeps what it cannot kill.

The appellate decision did not direct the Family Court to revisit custody, and it did not vacate the custody award. For Steve, the distance between a published appellate ruling and a changed life remained the point. The child was still in New York. The restrictions were narrower, but they were still restrictions.

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, while the custody arrangement remained in place.

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.

By the autumn of 2023, two appellate courts had ruled.

In California, the First Appellate District had affirmed the judgment on September 15, 2023. The jury’s battery finding remained in the civil record, along with its finding of malice, oppression or fraud for punitive purposes. The separate $50,000 punitive award had been struck before the appeal.

In New York, the Second Department had rejected the default characterization of the February order, replaced its blanket deletion command with a narrower directive, and affirmed the order insofar as appealed from. It had not vacated the custody award.

Both records existed simultaneously. The California record said Steve had been battered. The New York record said the February order had not been entered on default and that its deletion command could not stand as written. 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. Steve was still waiting for the change he believed the record required.

In a June 15, 2026 order denying his recusal motion, the Family Court expressly acknowledged the appellate holding that the custody order was not entered on default because his attorney had participated. The acknowledgment was in the court’s own words. The recusal request was denied, and the custody award was not vacated.

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