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A battle best kept under wraps

Posted: Monday, January 04, 2010

As a journalist, I'm supposed to be in favor of maximum access to court documents. As a human being - and in particular as a mother - I have a hard time seeing why the custody fight between Bristol Palin and Levi Johnston ought to be on the public record for all to see. An Alaska judge has denied Palin's request to keep the dispute under seal. How can this possibly be in the best interests of the child - their son, Tripp?

Johnston's approach, it's safe to say after his recent appearance in Playgirl, is to let it all hang out. His lawyers argued that "the courts are not refuges for the scions of the elite to obtain private dispensation of their legal matters," and Johnston topped that off with a dig of his own at his former would-be mother-in-law.

"I hope that if it is open she will stay out of it," he said in an affidavit. "I think a public case might go a long way in reducing Sarah Palin's instinct to attack." This is more than a bit hard to take from a man who was happy to dish to Vanity Fair about life behind the scenes chez Palin: Sarah and Todd's talk of divorce, Todd's nights on the living room recliner, Sarah in her "two-piece pajama set from Wal-Mart." Talk about an instinct to attack.

A British newspaper, the Guardian, later asked Johnston whether he thought his remarks about Tripp's grandmother might be harmful to his child. "I hope not, but what else are you going to do?" For starters, maybe act like a grown-up?

Law is all about precedents, and Bristol Palin's lawyers note that the custody disputes between Alec Baldwin and Kim Basinger and between Britney Spears and Kevin Federline were conducted under seal. The most ironic argument, though, comes in their citing a 2007 Alaska Supreme Court ruling emphasizing that the state constitutional right to privacy extends to minors as well as to adults. The decision overturned a 1997 state law requiring parental consent for minors seeking abortions - a ruling then-Gov. Palin denounced as "outrageous."

The harder question in the case is whether Bristol Palin's request for sole legal and physical custody of her son - with Johnston given visitation rights - should be granted. It's clear that Bristol has taken on nearly all the burden, physical and financial, of raising her son; it's less clear whether Johnston has failed to step up to the plate because he has been blocked from it or because he is a slacker. Has his behavior been so irresponsible that he should be ousted from having any say in his child's upbringing?

As Emily Bazelon has pointed out in Slate, "Modeling for Playgirl doesn't make Levi a model for decorous fatherhood, but it's hardly enough to strip him of his right to help make decisions about his son's life, which is what sole legal custody for Bristol would mean."

If I were the judge in the case, I'd want to know more before deciding - but I'd do it the right way, behind closed doors.

• Ruth Marcus is an editorial writer for The Washington Post.



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