A parent’s worse nightmare. Your child comes home, all disheveled, and tell you he thinks he is in trouble. He had been at a party and may have drunk too much. On the way home, he believes he may have run someone over. He gives you all the details of what happened. He is shortly arrested and under the advise of the attorney you immediately retained for him, he refuses to speak to the police. The District Attorney figures that you must have spoken to your child about the crime and subpoenas you to testify as to what he told you before a Grand Jury. Can you be forced to reveal your child’s confidences?
The answer, at least in New York, is probably no. There is no statutory parent-child privilege, like that of attorney-client or priest-penitent privilege in New York or New Jersey. However, there is case law in New York that has arguably created such a privilege. In a case called Application of A & M, the N.Y. 4th Department Appellate Division ruled in 1978 that “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.” They reasoned that “It would be difficult to think of a situation which more strikingly embodies the intimate and confidential relationship which exists among family members then that in which a troubled young person, perhaps beset with remorse and guilt, turns for counsel and guidance to his mother and father. . . . Shall it be said to those parents ‘Listen to your son at the risk of being compelled to testify about his confidences.’”
The Court of Appeals, New York’s top court has not ruled on the issue and could hold there is no such privilege. However, other N.Y. Appellate Courts have supported it. As it stands now, a parent will not be forced to testify to a child’s confidences if the child is under 18 years old. Although there is one lower court case to the contrary, it will not apply if the child is an emancipated adult. It is not clear what the ruling would be if the child is an unemancipated adult living at home. It would probably depend on the adult’s mental condition and emotional dependence on his parents.
Neither New Jersey nor the Federal courts have accepted a parent-child privilege. If your are subpoenaed in either of those jurisdictions, you should still claim the privilege and let your attorney make the argument that the law should be changed.
Kim Steven Juhase
Partner, Novak Juhase & Stern
now that was very interesting
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