California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 2001
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News / News Briefs
Bar foundation gives $50,000 grant to fund Conference of Delegates
Bar hit with $2.35 million fee demand in lawyer dues case
Bush administration ends ABA review of judicial candidates
Special publication in May Bar Journal
Davis appoints two public members to board of governors
George lauds five years of reform
2001 Annual Meeting will be held in Anaheim
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Trials Digest
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Legal Tech - FindLaw: Lawyers' home on the web
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Opinion
From the President - Butter a slice, not a full loaf
Is it wrong to copy a song?
Letters to the Editor
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Update on ethics
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MCLE Self-Study
Kids and the Law
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - 2 new rulings send litigators back to basics
Forgery, grand theft, fraud convictions lead to resignation
Attorney Discipline

SELF-ASSESSMENT TEST

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Read this article and take the accompanying test to earn one hour of MCLE credit.
Follow instructions on test form

This month’s article and test provided by
California Bar Journal
West Group

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MCLE SELF-STUDY

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Kids And The Law

A State Bar guide provides an 'A-to-Z' primer for parents when it comes to a variety of legal issues   

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EDITOR'S NOTE: As part of the State Bar of California's public education campaign, California Bar Journal will publish in May a special revised 2001 issue of the popular "Kids and the Law: An A-to-Z Guide for Parents." This month's MCLE self-study draws on excerpts from that guide.

Alcohol and kids

Believe it or not, there are approximately 3 million youngsters in the United States who have a serious drinking problem, and of all kids who start drinking, one in 10 becomes an alcoholic. The minimum age for drinking in California is 21. This means that the sale or transfer of alcoholic beverages to anyone under that age is prohibited. In California, an alcoholic beverage is any beverage that has at least one-half of 1 percent alcohol.

Also, with some exceptions, persons under the age of 21 are prohibited from being in an establishment where liquor is being served and from possessing or drinking alcohol in a public place, including state highways or in and around schools. The law also makes it illegal to possess false identification or use a fake I.D. to purchase (or attempt to purchase) alcohol or to enter an establishment where alcohol is being served. Minors also must abide by city and county ordinances that prohibit all persons from consuming alcoholic beverages in public parks or recreation areas. Anyone, adult or minor, who possesses an open container of alcohol in a prohibited area is guilty of an infraction.

The consumption or possession of an alcoholic beverage by a minor is legal if it occurs in the child's home with a parent's permission or in the presence of the minor's parents. Nevertheless, underage drinking may be regulated when it occurs at unsupervised social gatherings. Under California law, an unsupervised social gathering is a party or event that is open to the public, involves 10 or more people under the age of 21, and is not supervised by a parent or guardian of one of the participants. In this situation, a peace officer (who lawfully enters the gathering) can seize any or all alcoholic beverages from anyone under 21 whom the officer has witnessed drinking or possessing alcohol.

The punishment for violating these laws varies. Often, however, the offender may be found guilty of an infraction or a misdemeanor. In addition, young people between the ages of 13 and 21 who violate the law may have their driver's licenses suspended, revoked, or delayed up to one year for each offense related to the possession, consumption, or purchase of alcohol. This is true even if the offense does not involve an automobile. Also, for their first offense, young people may be asked to pay fines up to $250 or perform between 24 and 32 hours of community service. A young person convicted of a second or subsequent offense will be punished by a fine up to $500 or required to perform 36 to 48 hours of community service.

Driving under the influence of alcohol (DUI) is a very serious crime which often requires the payment of a large fine, a mandatory jail sentence, and the suspension or revocation of a driver's license, particularly if the young person has been convicted of the same offense in the past.

Adults, too, may be liable under laws intended to guard against underage drinking. For example, laws which prohibit the sale of alcoholic beverages to those under 21 provide for criminal as well as civil penalties against the bar and liquor store owners as well as social hosts.

Drugs and kids

Today, far too many of our kids are involved in the use, possession, or sale of drugs. In fact, the chances are about one in two that your high school-age child has experimented (or will) with some type of illicit drug. The worst part is that parents are often the last to know.

Laws regulating drugs exist at the federal and state levels. Most of the federal laws deal with large-scale drug trafficking, activities in which most kids are not involved. Instead, young people are most often charged with "possession of a controlled substance" under California law. More than 135 controlled substances carry a felony charge if you are arrested with one or more in your possession. Such substances include concentrated cannabis, heroin, cocaine, LSD, DMT, S.T.P., amphetamines, PCP, and barbiturates. For a few drugs, the punishment is less severe. The possession of not more than 28.5 grams of marijuana, other than concentrated cannabis, is treated as a misdemeanor, resulting in a fine of up to $100. Minors also may be escorted home to their parents or taken to a juvenile probation officer. Of course, if your child is found possessing more than one ounce of marijuana or with any amount on school grounds, or cultivating marijuana, the crime and punishment is more serious. Finally, it is against the law to have certain drug paraphernalia or to be knowingly in a place where heroin, cocaine, mescaline, peyote, or synthetic THC is being used if you aid, assist or abet in the participation of the unlawful smoking or use of a controlled substance.

In California, courts have the discretion to suspend a young person's license (if he/she is under the age of 21 but older than 13) for one year if he/she has been convicted of certain drug and alcohol related offenses. If the minor has yet to get a license, driving privileges may be delayed for one year subsequent to the time the person becomes legally eligible to drive. Successive offenses may result in further suspension or delay in eligibility. Suspension, restriction, or delay of driving privileges is in addition to any penalty imposed upon conviction.

The most serious drug offenses for which young people are sometimes prosecuted involve dealing or drug-running. When kids are arrested with a greater quantity of drugs than they could have reasonably been expected to use themselves, they may be charged with "possession with intent to sell" drugs. This is a felony, even if the simple possession of the particular drug involved would not have been a felony. The state imposes severe sanctions when any person 18 years or older unlawfully prepares for sale, selling, or giving away a specified controlled substance to a minor at locations where children are present, including school grounds, a public playground, a child day care facility, a church or a synagogue, during school hours or when school-related programs are in session or at any time when minors are using the facility where the offense occurs. This conduct is a felony punishable by up to nine years in state prison.  Persons under the age of 18 who induce another minor to violate designated provisions related to controlled substances may be punished by imprisonment in the state prison.

Parents are often the last to know that their child is involved with drugs. You need to look for marked changes in your child's general behavior and attitude. Remember that although some behavior is typical of adolescence, you should be particularly concerned if you see a combination of changes in your child, including:

A noticeable lack of interest in formerly rewarding activities or close friends

Frequently vague or withdrawn moods

Secret telephone calls or meetings, or being peculiarly secretive about personal possessions

Increased frustration levels and frequent temper tantrums;

Changes in sleeping and eating habits

A rapid decline in school grades or an unusual number of recurring absences

Frequent borrowing of money or the outright lack of money

Stealing or the disappearance of valuable items from around the house

Changes in personal dress, from neat and reasonably clean to unkempt and dirty

Forming new friendships and hangouts, and developing unusually strong alliances with those friends

Even if your child is not dealing in drugs, it is against the law to use or be "high" on drugs. If you find out that your child is using drugs, address the situation immediately and firmly. It is a troubling and all too-common family scenario, but you need to get through this together.

Parents' rights and responsibilities

It seems as though parents have more responsibilities than anything else. Nevertheless, parents do have some very important rights:

1. Custody and control: Parents must make important decisions about their children's lives. For example, where the children will live, who they will live with, what they will do from day to day, what school they will attend, when medical care might be appropriate, and what, if any, religion their children will practice. These rights are constitutionally protected and generally cannot be taken from parents unless it can be shown that the parents are unfit.

2. Cooperation and obedience: Parents are expected to control their children, and are permitted to discipline them, but must not abuse or neglect them. Sometimes a child refuses to obey the reasonable requests of his parents, runs away from home, refuses to go to school, or is outside parental control. In this situation, parents may go to court and seek to give up legal responsibility for the child. If parents fail to adequately control a child, a court may determine that the child is in need of supervision and declare him a ward of the court. When this occurs, the court sometimes takes custody of the child and responsibility for the child's basic needs and education.

Children are not required to obey parental orders to do something dangerous or illegal. Parents who allow or encourage children to commit dangerous or illegal acts may be charged with contributing to the delinquency of a minor, child abuse or neglect.

3. Earnings: Although most parents allow their child to keep money he or she has earned, parents do have a legal right to these wages. There are, however, some exceptions to this rule. A child's earnings may not be available to parents when:

the parents have exploited, neglected, or abandoned the child;

the child's income is the result of his special talent or athletic ability (the child star or athlete); or

the child's income is the result of a gift or inheritance.

4. Recovery for death or injury: If a child is killed or injured, parents are entitled to bring a lawsuit to recover costs such as medical or funeral expenses from the person responsible.

Parental responsibilities

The most important responsibility of parents is to support their children. Parents are legally obligated to provide their children with all of the necessities of life. Necessities are not limited to food, clothing, and shelter, but also include medical care and an education. This responsibility falls equally upon both parents and also applies to children that the parent has adopted. Failure to provide adequate food, clothing, shelter, or parental care and supervision may lead to criminal prosecution for neglect. If the county is required to support a child, the county is entitled to assignment rights to seek reimbursement from parents who are capable, but have refused, to provide support.

Parents are also required to reimburse the county for the costs of support incurred for detention of a child under a juvenile court order. Parents must also pay back the county for the cost of legal services provided to minors in juvenile court proceedings. The duty to provide support to children lasts until the child reaches the age of majority, which is usually 18, or 19, if she is still enrolled in high school full-time.

The failure of parents to marry does not affect the responsibility to support their children. If parents are unmarried, or divorced, and cannot agree upon how much each should contribute toward the support of their children, the courts may be called upon to decide. The other parent, or the child by a guardian ad litem, may bring an action against the parent to enforce the duty to pay child support.

Alternatively, the county may proceed on behalf of a child to enforce the child's right of support against a parent who fails to provide support. A court may order one parent to make specified payments to the other for child support. If a parent disobeys a court order to pay child support, the court may order a writ of execution or levy a wage garnishment, may subject the parent to civil contempt proceedings or criminal prosecution.

Note: A stepchild (a child from a prior marriage) is generally not entitled to support from a stepparent. Birth parents remain primarily responsible for child support unless the child has been adopted by the stepparent. If, however, a stepparent, or other person, provides necessary support to a child in good faith, where the custodial parent neglects to do so, that person may recover the reasonable value of those necessaries from the custodial parent. However, voluntary support paid out for a child is not required to be reimbursed by the natural parents, stepchild or the state, absent a specific agreement.

Supervision and control of children

Parents are morally responsible for exercising proper supervision and control over their children. However, generally, parents are not legally responsible for the acts of their children. There are certain exceptions.

For example, parents who encourage their children to break the law may be found guilty of contributing to the delinquency of a minor. Also, parents who know or should know that their child engages in improper conduct or who aid or encourage the conduct may be held liable for the acts of their children.

Additionally, there are specific statutes that hold parents liable for certain harm caused by their children.

These include:

Injuries from guns: Parents may be required to pay victims up to $60,000.

Intentional acts: If the child causes injury or death to another, parents are liable for medical, dental and hospital expenses, up to $25,000. 

Destruction of property: Parents are liable for sums children cannot pay, up to $50,000.

Graffiti: Parents are liable for the costs of removal, repair, and/or replacement of  property.

Injuries from tear gas: Parents who have signed a minor's consent form to obtain tear gas will be liable for injuries, unless the child used the gas in self-defense.

Fines for truancy: Parents may be required to pay fines up to $100.

Injuries on school grounds; Damage to school property; Failure to return borrowed school property: Parents will be liable for up to $10,000, and up to $10,000 for any reward.  The school may withhold grades, diplomas or transcripts until these amounts are paid. 

Shoplifting: If a child steals from a store or library, the parents are responsible for up to $1,000.

Curfew violations: Parents must pay the actual costs incurred by the police for picking up and returning children to their homes.