To amend the Federal Rules of Evidence to establish a parent-child privilege.

February 5, 2003

Mr. ANDREWS introduced the following bill; which was referred to the Committee on the Judiciary

To amend the Federal Rules of Evidence to establish a parent-child privilege.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Parent-Child Privilege Act of 2003'.

SEC. 2. PARENT-CHILD PRIVILEGE.

(a) IN GENERAL- Article V of the Federal Rules of Evidence is amended by adding at the end the following:

`Rule 502. Parent-Child Privilege

`(a) DEFINITIONS- For purposes of this rule, the following definitions apply:

`(1) The term `child' means the son, daughter, stepchild, or foster child of a parent or the ward of a legal guardian or of any other person who serves as the child's parent. A person who meets this definition is a child for purposes of this rule, irrespective of whether or not that person has attained the age of majority in the place in which that person resides.

`(2) The term `confidential communication' means a communication between a parent and the parent's child, made privately or solely in the presence of other members of the child's family or an attorney, physician, psychologist, psychotherapist, social worker, clergy member, or other third party who has a confidential relationship with the parent or the child, which is not intended for further disclosure except to other members of the child's family or household or to other persons in furtherance of the purposes of the communication.

`(3) The term `parent' means a birth parent, adoptive parent, stepparent, foster parent, or legal guardian of a child, or any other person that a court has recognized as having acquired the right to act as a parent of that child.

`(b) ADVERSE TESTIMONIAL PRIVILEGE- In any civil or criminal proceeding governed by these rules, and subject to the exceptions set forth in subdivision (d) of this rule--

`(1) a parent shall not be compelled to give testimony as a witness adverse to a person who is, at the time of the proceeding, a child of that parent; and

`(2) a child shall not be compelled to give testimony as a witness adverse to a person who is, at the time of the proceeding, a parent of that child;

unless the parent or child who is the witness voluntarily and knowingly waives the privilege to refrain from giving such adverse testimony.

`(c) CONFIDENTIAL COMMUNICATIONS PRIVILEGE- (1) In any civil or criminal proceeding governed by these rules, and subject to the exceptions set forth in subdivision (d) of this rule--

`(A) a parent shall not be compelled to divulge any confidential communication made between that parent and the child during the course of their parent-child relationship; and

`(B) a child shall not be compelled to divulge any confidential communication made between that child and the parent during the course of their parent-child relationship;

unless both the child and the parent or parents of the child who are privy to the confidential communication voluntarily and knowingly waive the privilege against the disclosure of the communication in the proceeding.

`(2) The privilege set forth in this subdivision applies even if, at the time of the proceeding, the parent or child who made or received the confidential communication is deceased or the parent-child relationship has terminated.

`(d) EXCEPTIONS- The privileges set forth in subdivisions (c) and (d) of this rule shall be inapplicable and unenforceable--

`(1) in any civil action or proceeding by the child against the parent, or the parent against the child;

`(2) in any civil action or proceeding in which the child's parents are opposing parties;

`(3) in any civil action or proceeding contesting the estate of the child or of the child's parent;

`(4) in any action or proceeding in which the custody, dependency, deprivation, abandonment, support or nonsupport, abuse, or neglect of the child, or the termination of parental rights with respect to the child, is at issue;

`(5) in any action or proceeding to commit the child or a parent of the child because of alleged mental or physical incapacity;

`(6) in any action or proceeding to place the person or the property of the child or of a parent of the child in the custody or control of another because of alleged mental or physical capacity; and

`(7) in any criminal or juvenile action or proceeding in which the child or a parent of the child is charged with an offense against the person or the property of the child, a parent of the child or any member of the family or household of the parent or the child.

`(e) APPOINTMENT OF A REPRESENTATIVE FOR A CHILD BELOW THE AGE OF MAJORITY- When a child who appears to be the subject of a privilege set forth in subdivision (b) or (c) of this rule is below the age of majority at the time of the proceeding in which the privilege is or could be asserted, the court may appoint a guardian, attorney, or other legal representative to represent the child's interests with respect to the privilege. If it is in furtherance of the child's best interests, the child's representative may waive the privilege under subdivision (b) or consent on behalf of the child to the waiver of the privilege under subdivision (c).

`(f) NON-EFFECT OF THIS RULE ON OTHER EVIDENTIARY PRIVILEGES- This rule shall not affect the applicability or enforceability of other recognized evidentiary privileges that, pursuant to rule 501, may be applicable and enforceable in any proceeding governed by these rules.'.

(b) CLERICAL AMENDMENT- The table of contents for the Federal Rules of Evidence is amended by adding at the end the following new item:

`Rule 501. Parent-child privilege.'.

(c) EFFECT OF AMENDMENTS- The amendments made by this Act shall apply with respect to communications made before, on, or after the date of the enactment of this Act.

END