Parent-Child Testimonial Privilege

A parent-child privilege exists in some form in three states by statute (Idaho, Massachusetts, and Minnesota) and in one state by case law (New York). The National Association of Criminal Defense Lawyers (NACDL) and the American Bar Association (ABA) have also proposed statutes.

These statutes vary in (1) how they define parents and children; (2) whether they protect communications from a child to parent, from a parent to child, or both; (3) whether they protect confidential communications or all adverse testimony; (4) who may assert the privilege; (5) how they define confidential communications; and (6) what exceptions apply.

In Idaho, a parent cannot be forced to disclose a communication from a minor child when the child is a party in a civil or criminal action. In Massachusetts, the statute disqualifies an unemancipated minor child from testifying against a parent in criminal matters. In Minnesota, a parent or the parent's child cannot be forced to testify about confidential communications made by the minor to the parent. All of these statutes provide exceptions where testimony is allowed, including cases of family violence. The NACDL proposed statute protects confidential communications between a child and a parent, guardian, or legal custodian. The ABA proposed statute from the 1980s creates an adverse testimonial privilege and a confidential communications privilege between a parent and child similar to spousal privileges.

In New York, some lower courts recognize the privilege but its scope is determined on a case-by-case basis. Two federal district courts recognized the privilege in limited situations but no circuit court of appeals has done so.

Under Idaho law, a parent, guardian, or legal custodian cannot be forced to disclose any communication from their minor child or ward concerning matters in a civil or criminal action to which the child or ward is a party. The privilege does not apply to (1) civil actions between the two; (2) criminal actions for a crime of violence of one against the other; and (3) cases of physical injury to a minor child when the injury is a result of physical abuse or neglect by one or both parents, a guardian, or a legal custodian (Idaho Code § 9-203(7)).

Under Massachusetts law, an unemancipated minor living with a parent cannot testify before a grand jury or in a criminal proceeding against that parent. A parent is the natural or adoptive mother or father of the child. The privilege does not apply when the victim is a member of the parent's family who resides in the parent's house (Mass. Gen. L. Ch. 233, § 20).

Under Minnesota law, a parent or the parent's minor child cannot be examined on any confidential communications made by the minor to his parent. The communication must be made outside the presence of others except for members of the child's family who are living in the same household. The privilege may be waived (1) by express consent of the parent who is entitled to the privilege, (2) by the express consent of the child who made the communication, or (3) by the failure of the child or parent to object when the testimony is demanded (Minn. Stat. § 595.02(j)).

1. civil actions by a parent or child against the other or by one spouse against the other;

2. proceedings to commit the child or parent to whom the communication was made;

3. proceedings to place the person or property of the child or parent under the control of another because of a mental or physical condition;

4. criminal actions in which a parent is charged with a crime against the child, the parent's spouse, the child of either parent or spouse, or the property of any of them;

5. criminal actions in which the child is charged with a crime or act of delinquency against the person or property of a parent or child;

6. actions for the termination of parental rights; and

7. actions alleging child abuse, neglect, abandonment, or nonsupport by a parent (Minn. Stat. § 595.02(j)).

The scope of a parent-child privilege in New York is uncertain. A few lower courts have recognized the privilege while others have not. The privilege “may exist in certain situations when it is the unanimous wish of all members of the family that the communication be held in confidence and be privileged” (Bender's New York Evidence). In general, the privilege applies to confidential communications from a child seeking support or guidance when the interests of society in protecting and nurturing the family relationship force the state's interest in fact-finding to give way (Bender's New York Evidence).

In one case, the privilege protected communications from a child to his mother when seeking guidance at a police station, even though a police officer overheard the conversation (People v. Harrell, 450 NYS2d 501 (2d Dept. 1982)). The privilege also applied to communications to a grandmother with whom the child had lived for 15 years (In re Ryan, 474 NYS2d 931 (Fam. Ct. Monroe Co. 1984)). But courts ruled that the privilege did not exist in at least two cases (Berggren v. Reilly, 407 NYS2d 960 (Sup.Ct. Nassau Co. 1978) and Harry R. v. Esther R., 510 NYS2d 792 (Fam.Ct. Bronx Co. 1986)).

Two federal district courts recognized the privilege. In one case, the court ruled that the fundamental right to privacy in communications within the family unit and the family's interest in its integrity outweighs the government's goal of presenting all relevant evidence (In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D.Nev. 1983)). In a case from the U.S. District Court for the District of Connecticut, a mother refused to testify against her daughter in a grand jury proceeding because, as a Conservative Jew, her religion prevented her from testifying against her children. The court found a limited parent-child privilege based on the mother's First Amendment rights to freedom of religion to the extent that her refusal to testify is based on her religious convictions (In re Grand Jury Proceedings (Greeenberg), 11 Fed. Rules Evid. Serv. 579 (D.Conn. 1982)).

The NACDL proposed statute protects confidential communications between a child and a parent, guardian, or legal custodian. Under the statute, (1) a child cannot be compelled to disclose communications from the parent without an explicit waiver by the parent and (2) a parent cannot be compelled to disclose communications from the child without an explicit waiver from the child. The privilege applies to administrative, civil, and criminal actions and grand jury proceedings. But the privilege does not apply to actions relating to alleged violence or sexual abuse against the child (The Champion, April 1998).

The ABA drafted two parent-child privileges similar to the spousal testimonial privileges in the 1980s. An adverse testimony privilege and a confidential communication privilege apply to minor children and their parents. A parent is a (1) birth-, adoptive-, or step-parent; (2) legal guardian; or (3) person with a right to act as a parent as recognized by the court (such as a foster parent or a relative with custody of the child).

Under this privilege, a parent or the parent's child cannot be compelled to provide adverse testimony about the other in a grand jury proceeding or when one of them is a defendant in a criminal proceeding or the subject of a juvenile proceeding. The parent or child who is the witness holds the privilege. Adverse testimony is testimony that is incriminating or has the substantial likelihood of being incriminating.

There is no privilege when (1) the parent or child is charged with a crime against the person or property of the other or a family member or (2) the parent or child is involved in criminal activity with the other. The privilege does not protect testimony about matters when the relationship of parent and child did not exist.

Under this privilege, a parent or the parent's child cannot be compelled to testify about confidential communications between them when one of them is (1) a party to a proceeding or (2) called to give testimony about the other in a grand jury proceeding. Both the parent and the child hold the privilege and either may prevent the other from testifying. A parent-child relationship must exist at the time the communication is made. A confidential communication is a message made between a parent and child with a reasonable expectation that its contents will not be made known to anyone except family members (parents and children). Messages may be oral, written, sign language, or assertive conduct.

1. the parent and child are opposing parties;

2. the child's parents are opposing parties;

3. the parent or child is a party and both were jointly involved in the activity that is the focus of the proceeding;

4. either is a party to a criminal or juvenile proceeding based on alleged acts committed against the person or property of a family member;

5. an action is to commit the parent or child due to mental incompetence or disorder or to establish mental competence;

6. an action is to place the person or property of the parent or child in the custody or control of another due to mental or physical incompetence;

7. neglect, dependency, deprivation, abandonment, or nonsupport of either is at issue;

8. mental, physical, or sexual abuse of either is at issue; or

9. the termination of parental rights is at issue.

Under both privileges, the refusal to testify when the privileges are inapplicable is punishable as contempt. The unauthorized disclosure of a privileged confidential communication is also punishable as contempt. When imposing punishment in either situation, the court should consider (1) the age and mental and physical condition of the witness and (2) the present and future welfare and protection of the witness.


January 20, 1999		99-R-0079
PARENT-CHILD TESTIMONIAL PRIVILEGE

By: Christopher Reinhart, Research Attorney