[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3433 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3433

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 26, 2005

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

_______________________________________________________________________

                                 A BILL


 
  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 
2005''.

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 after the item relating to rule 501 the 
following new item:

``Rule 502. 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.
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