Writing a father-son column presents a unique opportunity to work together professionally. It allows us to share in an experience unlike any other we have had before, and we hope it will bring us closer together.

However much it strengthens our relationship, there is one thing it will not allow us to do: share confidences, secure in the knowledge that no matter what one of us tells the other, the other cannot be compelled to reveal that most private communication. The reason? New York has not codified a parent-child privilege, and as Fisch on New York Evidence explains, while “[a] parent-child privilege has begun to be recognized in this state … its outlines have not yet been sharply defined.” §751 Parent-Child Privilege (2008).

In 1982 and 1992 proposed codes of evidence for New York were drafted, though never enacted. Neither contained a proposed parent-child privilege.

Twenty years ago there was a push, albeit ultimately unsuccessful, to enact a parent-child privilege in New York. Given the myriad legal and societal changes in the last 20 years, perhaps it is time to revisit the idea of codifying the privilege.

The Origins of the Privilege

In 1978 the Fourth Department, in In re A. & M., reviewed a trial court order quashing grand jury subpoenas served on the parents of a minor child. 61 A.D.2d 426 (4th Dep't 1978). The subpoena sought to have the parents testify concerning certain admissions made by their 16-year-old child in connection with an alleged arson. The trial court held that there was a parent-child privilege protecting the communication from disclosure, and quashed the subpoenas.

On appeal the Fourth Department framed the issue:

We are confronted with an issue involving significant competing interests: whether the State, in the exercise of its duty to seek criminal evidence, may compel the parents of a minor child to testify before a Grand Jury concerning admissions by the child which were made in confidence. This issue is, we believe, one of first impression in this State.

Viewing the issue through the prism of the constitutional right to privacy, the court identified four “fundamental conditions” necessary for a privilege to arise:

(1) the communications must originate in confidence that they will not be disclosed;

(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

(3) the relation must be one which, in the opinion of society, ought to be sedulously fostered; and

(4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

Determining it was “probable” that all four factors were satisfied, the court nonetheless acknowledged “that the creation of a privilege devolves exclusively on the Legislature.” Notwithstanding this stricture, the court held:

We conclude, however, the communications made by a minor child to his parents within the context of the family relationship may, under some circumstances, lie within the “private realm of family life which the state cannot enter.”

Because the court held that the parent-child privilege, if applicable to the facts at bar, did not bar an appearance before the Grand Jury, but rather required it be invoked by the parents when appearing before the Grand Jury, the trial court's order quashing the subpoena was reversed, with the instruction that if, on remand, the parents asserted the privilege, and “the court is then asked to rule on such claim, it may find it necessary to hold an evidentiary hearing to determine whether the factual context in which the statements were made mandates that the information sought be given constitutional protection in accordance with this opinion.”

In re A. & M. involved a communication between parents and a minor child. In People v. Fitzgerald, 422 N.Y.S.2d 309 (Nov. 14, 1979), a Westchester County trial court held that the privilege applied where the child was 23 years old and emancipated. The Fitzgerald court determined that it was the nature of the relationship and the nature of the communication, and not the age of the child, which governed:

The parent-child relationship of mutual trust, respect and confidence, if it exists at all in the individual case, is one that should be 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.

Not only do logical, ethical and moral considerations mandate the extension of such a fundamental right beyond any arbitrary age, but if, as this court believes, such a parent-child “privilege” flows from the constitutional right to privacy inherent in such a relationship, the State is forbidden under law to create such an artificial barrier as age to limit that right to certain persons only, due to the ongoing nature of such a relationship. (US Const, 14th Amdt; NY Const, art I, §§ 1, 11.) No other previously recognized privilege has as its basis a necessity of meeting a minimum or maximum age. It is the nature of the relationship and the nature of the communication which govern.

However, in People v. Hilligas, 670 N.Y.S.2d 744, 747 (Feb. 27, 1998), a trial court in Erie County held the privilege did not extend into adulthood, reasoning that “[t]he reasons for supporting the privilege in cases like A and M often don't survive into adulthood and no longer outweigh the State's significant interest in investigating violent crimes.”

The Court of Appeals has only once considered the parent-child privilege. In People v. Johnson, the court determined that no privilege applied, citing the fact that the “child” was 28 years old as one of a panoply of reasons why there was not privilege on the facts before it:

Moreover, a parent-child testimonial privilege (which defendant urges be adopted to preclude his mother's testimony) would not even arguably apply in that defendant was 28 years old at the time of the conversation with his mother; another family member was present; the mother testified before the Grand Jury hearing evidence against defendant; and the conversation concerned a crime committed against a member of the household.

Past Proposals

In 1998, both the Chief Judge's Civil Practice Advisory Committee and the New York State Bar Association's CPLR Committee proposed a new CPLR 4502-a to codify a parent-child privilege. Though the goal was the same, each took a different approach. (Both contained a proposal to amend Family Court Act §1046(a)(vii) to add the parent-child privilege to the list of privileges that “shall [not] be a ground for excluding evidence which otherwise would be admissible” in child protective proceedings.)

The Advisory Committee's proposal, titled “Parent-Child Confidential Communications,” was simple and straightforward:

Section 1. The civil practice law and rules are amended by adding a new section 4502-a as follows:

4502-a. Parent-Child Confidential Communications. A child and his or her parent, or person legally responsible for the care of such child shall not be compelled to disclose a confidential communication between them.

The CPLR Committee's proposal, titled “Children and parent,” contained an important clarification and enumerated six exceptions to the privilege:

Section 1. The civil practice law and rules are amended by adding a new section 4502-a to read as follows:

4502-a. Children and parent. (a) A child and his or her parent, guardian or legal custodian shall not be required, or, without consent of the other if living, allowed to disclose a confidential communication made by one to the other.

(b) A communication between a child and his or her parent, guardian or legal custodian shall be deemed confidential despite being made before the child's siblings.

(c) This section shall not apply: (i) to a civil action or proceeding commenced by the child, the child's parent, guardian or legal custodian against the child, the child's parent, guardian or legal custodian; or commenced by a child's parent, guardian or legal custodian against the child's other parent, guardian or legal custodian, or

(ii) to a civil action or proceeding contesting the estate of a child or the child's parent, guardian, legal custodian, or

(iii) to a criminal action or proceeding for a crime committed against the person or property of the child, the child's parent, guardian or legal custodian, or

(iv) to a matrimonial action, or

(v) a proceeding under article eighty-one of the mental hygiene law,

(vi) to any action or proceeding on a petition alleging child abuse, parental abuse, child neglect, abandonment, nonsupport, person in need of supervision, child custody or visitation.

Distinguishing the Two Proposals

As mentioned above, the CPLR Committee's proposal contained a list of actions to which the privilege would not apply, while the Advisory Committee's proposal had no limitations other than the shared exception for child protective proceedings.

The proposals differed in two other significant aspects. First, the Advisory Committee memorandum in support states “the proposed language merely restricts compelled disclosure for qualified communications. Either party to the confidential communication may reveal it if they choose.” The CPLR Committee's proposal would codify that neither party to the confidential communication was “without consent of the other if living, allowed to disclose a confidential communication made by one to the other.”

Second, the Advisory Committee's memorandum in support states “the privilege would not apply if the communication were made in the presence of [a third-party, including] a sibling of the child.” The CPLR Committee's proposal at subsection (b) codifies that “[a] communication between a child and his or her parent, guardian or legal custodian shall be deemed confidential despite being made before the child's siblings.”

It is worth noting that both proposals treat as privileged communications from a parent to a child as well as those from a child to a parent, a privilege no New York court has endorsed to date.

Conclusion

Husbands and wives divorce, clients fire their attorneys, and penitents leave the church, yet these relationships are given that most precious legal trump card—a statutory privilege. These relationships are given that protection because trust is essential to forming and maintaining them.

Psychoanalyst Theodor Reik, one of Freud's first students, wrote: “Romance fails us and so do friendships, but the relationship of parent and child, less noisy than all the others, remains indelible and indestructible, the strongest relationship on earth.” Doesn't this “strongest relationship” deserve the strongest protection?

David Paul Horowitz is a member of McNamara & Horowitz in New York City, Lecturer at Law at Columbia Law School, and serves as a legal malpractice expert, private arbitrator, mediator, and discovery referee. He can be reached at [email protected]. Lukas M. Horowitz is a member of the Albany Law School Class of 2019.