This is an original bill proposed by the New York State Bar
Association's
Committee on the Civil Practice Law and Rules. It amends the Civil
Practice
Law and Rules to add a parent-child evidentiary privilege to the law. It
also amends the Family Court Act to make clear that the new privilege
does
not apply to child abuse or neglect cases.
A parent-child privilege is not a new concept. It can be traced to
ancient
Jewish and Roman Law. See, Meredith Watts, "The Parent-Child
Privilege:
Hardly a New or Revolutionary Concept", 28 Wm & Mary L. Rev.
583,
591-92 (1987). However, it never became a part of the English or U.S.
common
law although it is the law in many other countries such as France, West
Germany and Sweden. Id. at 593.
In the U.S., there has been much resistance to recognizing such a
privilege.
Although the Federal Rules of Evidence Rule 501 gives the federal courts
great leeway in recognizing a new privilege, the majority of federal
courts
refuse to adopt it. In addition, only a few states have recognized it.
One
of those states is New York.
Although not yet considered by the New York Court of Appeals, the
privilege
has been judicially recognized in a series of Appellate Division
decisions.
In re Application of A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375
(4th
Dep't 1978); People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 50 (2nd
Dep't 1982), aff'd 59 N.Y.2d 620, 463 N.Y.S.2d 185 (1983) ( The
Court
of Appeals held that the issue of parent-child privilege was not
preserved
for their review). See also, People v. Romer, 152 Misc.2d
915, 579 N.Y.S.2d 306 (Sup. Ct., N.Y. Co. 1991). The parameters of the
privilege
have not been specifically delineated by the courts, and therefore
legislative
action is necessary.
All of the New York courts which have considered the issue have held that
the parent-child privilege arises out the of the Federal and New York
State
Constitutions' protection of the integrity of the family unit. Since the
United States Supreme Court has not promulgated hard and fast rules
regarding
the parameters of the term "family privacy" it is not
surprising
that the New York courts ruling on the issue have not been decisive.
That there is a constitutional protection of family privacy is not in
doubt.
This was settled in 1923 with the decision inMeyer v. Nebraska,
262
U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 624 (1923) which held that a state
could
not forbid the teaching of a foreign languages in private schools. The
court
has expanded this right to privacy not only to educational decisions but
also to decisions regarding marriage, Zablocki v. Redhail, 434
U.S.
374, 54 L.Ed. 618, 98 S.Ct. 673 (1978); contraceptives, Carry v.
Population
Services International, 431 U.S. 678, 52 L.Ed.2d 675, 97 S.Ct. 2010
(1977); pregnancy, Cleveland Board of Education v. La Fleur, 414
U.S. 632, 639-40, 39 L.Ed.2d 52, 94 S.Ct. 791, 796 (1974); adoption and
custody of children, Quilloin v. Walcott, 434 U.S. 246, 54
L.Ed.2d,
511, 98 S.Ct. 549 (1978); Stanley v. Illinois, 405 U.S. 645, 31
L.Ed.2d
551, 92 S.Ct. 1208 (1972) and family living arrangements, Moore v.
City
of East Cleveland, 431 U.S. 494, 52 L.Ed.2d 531, 97 S.Ct. 1932
(1977).
Although the U.S. Supreme Court has not yet ruled on the confidentiality
of intrafamily communications, there is a good chance that they will rule
it is part of "family liberty".
There is nothing more fundamental to the integrity of the family
relationship
then the confidentiality of family communications. As stated by Justice
Denman in In re Application of A & M:
Surely the thought of the State forcing a mother and father to reveal
their
child's alleged misdeeds, as confessed to them in private, to provide the
basis for criminal charges in shocking to our sense of decency, fairness
and propriety. It is inconsistent with the way of life we cherish and
guard
so carefully and raises the specter of a regime which encourages betrayal
on one's offspring. And if, as seems likely, the parents refuse to
divulge
their child's confidences, the alternatives faced by the parents . .
.could
seriously undermine public trust in our system of justice.
In re Application of A & M, 61 A.D.2d 426, 433, 403 N.Y.S.2d
375, 380 (4th Dep't 1978).
Although Application of A & M dealt only with communications
made by a minor, there is no logical reason to restrict it to an
arbitrary
age cut-off. See, People v. Fitzgerald, 101 Misc.2d 712,
422
N.Y.S.2d 309 (Cty. Ct., West. Co., 1979), app. dism, 76 A.D.2d 843
(2nd Dep't 1980). As stated by the court in Fitzgerald:
The parent-child relationship of mutual trust, respect and confidence, if
it exists at all in the individual case, is one that should and must be
fostered throughout the life of the parties. Indeed, in many cases, the
closeness of the family unit may well increase as the child becomes an
adult
and realizes that the advice, encouragement and training by the parents
had value and merit then and equal substance in later years. While the
"minor"
of 17 years and the parent of 40 may often be in disagreement on the
values
and lessons of life, the "adult" of 27 and the parent of 50 may
well have enjoyed a resurgence of common values, ideals and mutual trust
and respect, one for the other.
Id. 101 Misc.2d at 718-19, 422 N.Y.S.2d at 313-14.
Since the privilege is meant to protect the family unit, it should also
extend to confidences told to a child by a parent. As stated in
Fitzgerald,
as the family gets older, the parents and child may draw even closer.
Many
families find their positions reversed, with the child supporting the
parent
and the parent depending on the sometimes better educated child for
advice.
See, e.g., Stroh v. G.M.C., N.Y.L.J., 3/23/95, page 25,
col.
1 (1st Dep't).
Subsection a) of the proposed law covers all confidences told by a
parent,
parent substitute, or his spouse to a child and a child to a parent,
parent
substitute, or his spouse in both civil and criminal proceedings.
Subsection
b) makes clear that even if the statements are made in front of siblings,
they remain confidential. In times of emergency, it is likely that a
family
crisis will be discussed among all the family members, not just to the
parents
in a closed room. The expectation is that the confidences will not leave
the family.
Subsection c) lists the exceptions to the privilege. Because of special
relationship of the State to a child and dynamics of family life, these
exceptions are vital to avoid a member of a family taking unfair
advantage
of another. They cover situations where one family member makes a claim
against the other or the issue is the welfare of the child.
The preliminary draft of this bill was amended based on suggestions from
the CPLR committee to make clear that the privilege does not apply to
actions
between the child's parents parent substitutes or siblings or involving
the estate of a deceased parent or parent substitute. At the point these
actions are brought, the integrity of the family unit has disintegrated
so there is no need for the privilege. It would not apply to matrimonial
actions.
Some members of the committee raised the issue of third party actions
where,
for example, a child would sue a person who brings in the parent as third
party defendant. There is no reason for the privilege not to apply to
such
an action. The integrity of the family unit is still intact. There is no
direct action between family members. While the defendant may argue that
this puts him in an unfair position, such an argument could be made
regarding
any privilege.
Family Court Act§1046 (a)(vii) provides in proceedings
regarding the neglect or abuse of a child, the usual privileges do not
apply.
The amendment to this section is necessary to make clear that the
parent-child
privilege also does not apply in these proceedings.
For the foregoing reasons, this bill is APPROVED.
Person who prepared the report: Kim Steven Juhase, Esq.
Chair of the Committee: Paul H. Aloe,
Esq.