Supreme Judicial Court (December 14, 2004)

Only unemancipated, minor children who actually reside with the accused parent may invoke the testimonial disqualification provided by G.L. c. 233, § 20, Fourth.

Two minor children were summonsed to testify against their father before a grand jury. The children filed a motion to quash claiming they were prohibited from testifying against their father pursuant to G.L. c. 233, § 20, Fourth, which states, "An unemancipated, minor child, living with a parent, shall not testify before a grand jury … against said parent, where the victim in such proceeding is not a member of said parent's family …." The victims in the case were not family members.

The issue was whether the children were "living with" their father. The Commonwealth argued that the children were not living with their father because their parents were separated and had been living in two different residences for fourteen months. The children lived in the marital home with their mother. The father lived in an apartment in another town. The children argued that the "living arrangement … was not made to limit the father's role in their lives." Their father visited the marital home two to three times a week, he slept over at the house an average of three nights a month, and attended school, dance and sporting events in which the children participated. The children claimed that the statutory language, "living with a parent," should be interpreted "'in light of the evolving nature of the family unit" and include families "'where the children do not live full time with both parents.'"

The Court stated that testimonial privileges must be strictly construed and the phrase "living with a parent" is not ambiguous. The Court held that "[o]nly unemancipated, minor children who actually reside with the accused parent may invoke the disqualification (assuming the other requirements of the statute are satisfied)." The Court declined to extend the statute's application to circumstances involving parental visitation.