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CHILDREN'S PREFERENCES IN CUSTODY DISPUTES

By Warren R. Shiell

 

           Loving parents usually listen to their children before making important decisions even if it means that their views do not necessarily determine the final outcome. For example, one might ask for a child’s opinion before buying a new house or deciding on a new school but that doesn’t mean that they get to make the final decision. So when parents divorce it is only natural to discuss children’s preferences. An influential therapist has said, “Children feel powerless at divorce and should be invited to make suggestions that the adults will consider seriously. In this way they can feel active instead of passive agents in the crisis.” FN1

            However, when parents cannot agree on a parenting plan and the matter goes to court, one of the most difficult issues facing parents, therapists and courts who are called upon to make decisions about custody is the extent to which the preferences of children should be taken into account and the how they should be taken into account. In many states, a child’s preferences must be taken into account in determining their best interests.

            In a custody case there seems to be a common misperception that once a child is twelve they get to decide which parent they live with. This is an urban legend. FN2.

            Similarly, a judge is not going to ask a child to testify who they want to live with. In fact, many judges are extremely reluctant to allow a child to testify in court or even to speak to the judge privately in chambers. They do not want to place the child into the middle of the dispute and add even more emotional baggage for the child. Children in such situations end up carrying an enormous load of guilt if they favor one parent at the expense of the other.

            Nonetheless, a child may want to express a preference about where they want to live. In such cases, there are usually ways for a court to hear the preferences of the children through a custody evaluation by a therapist who is trained in interviewing children. FN3. Some jurisdictions may appoint a minor’s counsel or guardian for the child. Before agreeing to such an appointment you should make sure that the attorney has the proper training to interview children.

            When children are interviewed about their preferences, an evaluator will want to know the rationale for the child’s preferences and to consider them in the light of all circumstances of the family relationships to understand how they fit into the child’s best interests.

            The first question is whether the child is expressing a genuine preference or they are mirroring the preference of one of the parents as a result of direct pressure or threats or a desire to please. In dysfunctional relationships, preferences may reflect the child’s alignment with the parent they most fear, or the parent they regard as the most unstable. Clues as to reliability can be discerned by the timing of the child’s statements, the type of words used by the child, and the extent they mirror the parents language. FN4  

            The second question is whether a child’s stated preference to live primarily with one parent is a result of factors which are clearly not in their best interests. Younger children may lack the developmental capacity to understand what life would really be like if their preferences became reality. They may not have a mature sense of time and not have a clear idea what a week without one parent would be like. Also a child may state a preference impulsively or for reasons which are not in their best interests. For example, an adolescent boy may state that he wants to live with his father. Upon closer examination, the evaluator finds out that the real reason for his preference is that the father provides no structure or discipline, lets him drink, stay out all night and so forth. Another example, would be a 5 year old girl who says she wants to live with her father because he buys her candy. Children are fickle and they may express a preference as a result of some minor frustration, “Mom, made me do homework and wouldn’t let me go out.” They may take a position in the heat of the moment just after an argument.  Kids also tend to think that the “grass is always greener” and their allegiances fluctuate depending who they’ve just spent time with. That’s why a series of interviews over a period of time and after they’ve been with each parent is a good idea.

           

            Another problem with giving great weight to children’s preferences is that it may weaken a parent’s authority over the kids, if the kids believe that they can control their parents by threatening, “If I don’t get what I want, I’m telling the Judge that I don’t want to live with you anymore.”

           

            The above reasons are not reasons why you should not consult with and listen carefully to your children’s feelings and concerns when you divorce. However, it should be done sensibly with their best interests in mind and children should not be made to feel that they are porns in a battle between two parents.

 

This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com

           

FN1.    Wallerstein and Blakeslee (1989).

FN2.    In Texas, however, a child may file with the court an affidavit stating who they would like to live with. Texas Family Code section 153.008.

FN3.    An excellent review is Richard A. Warshak’s “Payoffs and Pitfalls of Listening to Children.” Family Relations, 2003, Vol 52, No. 4.

FN4.    The Art and Science of Custody Evaluations (2007) Gould and Martindale.


CHILDREN AND CRIMINAL LAW

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

Criminal law and crimes represent those acts, behaviors or attitudes that society believes are wrong and wishes to discourage. When a minor or adult violates a criminal law, it is the state, on behalf of society, that files a lawsuit. County prosecutors are the state’s designated representatives and have the discretion to choose which violations of criminal law are most important to prosecute or punish. When the state prosecutes someone for breaking a criminal law, the wrongdoer could face a fine, be locked up in a county jail or sent to state prison. In a civil case, you may have to pay a fine if you lose, but you will not be sent to jail.

In California, most of the laws defining criminal conduct can be found in the California Penal Code, but criminal acts are defined in other areas of the law as well. City and county ordinances also are considered part of criminal law and include, for example, curfew laws, laws against smoking and laws requiring smoke detectors or fire escapes.

Criminal offenses are divided into three categories: felonies, misdemeanors and infractions. (PC § 16) A felony is the most serious type of crime and is punishable by a fine and/or imprisonment in a state prison, ora death sentence. A misdemeanor is punishable by a fine and/or imprisonment in a county jail for no more than one year in most cases. Infractions usually do not involve any jail time, but the defendant must appear in court and/or pay a fine. If charged with an infraction, you are not entitled to a jury trial or an attorney at state expense. Most traffic violations are infractions. Finally, some crimes are punishable either as misdemeanors or felonies. These crimes are called wobblers and are considered felonies until the judgment is imposed.

MYTH : Some parents believe that children who are under a certain age cannot be convicted of a criminal act. But while a child’s age and experience do impact a court’s determination as to whether the child understands that his or her actions were wrong, there is no magic age at which a child cannot be found guilty of a crime. (PC § 26) If the state seeks to prosecute a child under the age of 14 in California, however, attorneys must establish clear proof that the child knew that his or her act was wrong at the time. For more information about how criminal laws relate to kids, see Juvenile Court.

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


CHILDREN AND CIVIL LAWSUITS

Thank you to the State Bar of California which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

In general, legal actions are divided into two categories: civil and criminal. Civil actions are lawsuits (often between private individuals or businesses) in which someone sues someone else for monetary damages (money) or something else to compensate or offer protection for a wrong that was committed. When a civil case has to do with an injured child, parents are often involved.

Minors can, however, enforce their own legal rights in a civil case as long as they do so through a guardian ad litem. A guardian ad litem is a responsible adult appointed by a court to pursue a case in a child’s name and to work to protect and defend the child’s rights. In many instances, the court-appointed guardian is the child’s parent. Along with the power to sue, children can be sued, often through their court-appointed guardian ad litem. (FC §§ 6600, 6601)

Are there any deadlines for filing lawsuits?

Yes. When filing lawsuits, adults and children alike must abide by statutes of limitations. A statute of limitations is a law that sets a time limit on the filing of particular lawsuits. These time limitations vary according to the type of action involved but are relatively standard for the following cases:

Personal injury—two years from the time of the injury. (CCP § 335.1)

Breach of contract—four years from the day the contract was broken, or two years if the contract was never in writing. (CCP §§ 337, 339)

Damages to real or personal property—three years from the date the damage occurred. (CCP § 338(b)(c))

In addition, California as some other important laws relating to civil actions brought by minors. First, if a child is injured before or at the time of birth, the lawsuit (other than medical malpractice suits) must be filed within six years of the birth. (CCP § 340.4) A minor’s medical malpractice suit must be initiated within three years, or one year after the parents discovered (or should have discovered) the injury unless he or she is under 6 years old. If the child is under age 6, the suit must be initiated within three years or prior to the child’s eighth birthday, whichever period is longer. (CCP § 340.5) Lawsuits alleging child sexual abuse generally can be brought until the person is 26 years old or until three years have passed since the person discovered (or could have reasonably discovered) that his or her injuries were related to sexual abuse, whichever period is longer. (CCP § 340.1)

In most cases, however, the statute of limitations clock starts when the child reaches 18. This means, for example, that a 12-year-old boy injured in a traffic collision could wait until two years after his 18th birthday to begin an action. (CCP § 352)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


CHILD ABUSE AND NEGLECT

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

By one estimate, some 870,000 children are abused or neglected nationwide each year. Roughly 1,500 a year die at the hands of their abusers. And most of the victims are under age 4. But child abuse victims can be any age, come from any ethnic background and be born into poverty or into wealth. Such victims do not fit into a particular profile.

It is against the law for anyone to abuse a child—physically, sexually (see Sex and Kids) or emotionally—or to endanger any child by putting the youngster in harm’s way. Nor is it legal to intentionally neglect a child who is in your care—to fail to adequately feed, clothe or supervise the child or to supply medical care. (PC §§ 270 et seq, 11164-11165.6)

Those who break these laws, depending on the circumstances, could face years in prison as a consequence. In addition, if one parent fails to protect his or her child from another parent or partner who is abusive, he or she could be found criminally liable as well.

What should I do if I suspect a child is being abused or neglected?

Call your local Child Protective Services hotline (every county has one) or contact the local police. The youngster could be at great risk. And unless it can be proven that you knowingly filed a false report, you cannot be held liable if you are wrong. 

Will the alleged abuser find out that I filed a report?

It depends. You can remain anonymous unless you are a mandated reporter.

What is a mandated reporter?

Because abused and neglected children are at such great risk, individuals in certain professions are required by law to report suspected abuse. The list of so-called mandated reporters generally includes teachers, school personnel, doctors, nurses, police officers and firefighters, as well as certain other professionals who regularly come in contact with youngsters. Mandated reporters must notify authorities immediately and file a written report as well within 36 hours. (PC §§ 11165.7 - 11174.3)

What is “Shaken Baby Syndrome”?

It is a life-threatening condition that can develop when someone shakes a baby. The sudden shaking motion slams the youngster’s brain into his or her skull. One in four children die as a consequence. The resulting trauma can also lead to permanent brain damage, blindness or severe motor dysfunction. It can happen when a frustrated parent or caregiver simply shakes a child to stop a bout of crying. And babies are not the only ones at risk; severe shaking can cause head trauma in children up to age 5. Pending legislation proposed in 2007 would make it specifically illegal for anyone to shake a child under age 3. Experts suggest that overstressed parents or caregivers seek help. Parents, concerned adults and children alike can visit www.childhelp.org or call 1-800-4-A-CHILD (422-4453) for help.

California law does not specify any particular age. Every situation—and every child—is different. It could depend on various factors: the child’s level of maturity and judgment, the time of day, the safety of the neighborhood and the proximity of another responsible adult who could be available in an emergency. The legal question would be whether or not the child would be put at risk if he or she were left alone—whether you could be endangering or neglecting the child.

There are, however, other situations in which it is against the law to leave a child of a certain age alone. For example, in certain circumstances, children under 7 cannot be left alone in a car (see Laws that Young Drivers Should Know on the previous page).

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


CHILDREN AND THE INTERNET

Thank you to the State Bar of California which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

Your children talk to their friends via the Internet. They play games, research school papers and learn aboutthe world in cyberspace. Many youngsters use a computer or the Internet every day for all kinds of reasons—and that use is likely to grow. One national study found that two out of three preschoolers now use computers and one in four has already visited the Internet.     

But while surfing the Internet may open many doors, it can put your children at risk as well. A recent survey found that one in three children (ages 10 to 17) had been exposed to unwanted sexual material online. One in seven had received a sexual other end of their online chats, and their personal information could be misused if they’re not careful. Also, if they download certain material, your children could be breaking the law—and you, as the parent, could be liable.

 Is it ever illegal for an adult stranger to contact my child online?

 Yes. It is against the law for adults to send sexually explicit or obscene material to minors. It is also against the law for an adult with sexual motives to seek to seduce a child online or to arrange an in-person meeting with the child—even if the adult fails to show up. Just setting up such a meeting is a misdemeanor that could lead to a year in jail. And if the meeting does take place, the adult could face four years in state prison for online enticement. (PC §§ 272, 288.3; 18 USC § 2422(b))

 What should I do if my child is solicited or sent obscene material online?

 Contact the 24-hour CyberTipline at 1-800-843-5678 or at www.cybertipline.com. Bylaw, Internet Service Providers (ISPs) must report any child sexual exploitation or child pornography to the federally mandated tipline.

 LINGO

 Teens use this shorthand in e-mails and instant messages. Do you know what it means?

121 - one to one 143 - I love you A/S/L? - age, sex, location BCNU - I’ll be seeing you BF - boyfriend B/W/O - black, white, other CUL8ER - see you later DGT - don’t go there DIKU - Do I know you? EMA - what is your E-mail address? F2F - face to face FAWC - for anyone who cares. GGOH - Got to get out of here IMS - I am sorry IPN - I’m posting naked LMIRL - Let’s meet in real life. LOL - laughing out loud P911 - My parents are coming! PIR - parent in room WYRN - What’s your real name?

For a more complete list, go to www.cybertipline.com (then click on HDOP and online lingo)Source: National Center for Missing & Exploited Children 

Sexual Predators and the Computer

 Minimize the chances of an online exploiter victimizing your child:

  •  Communicate and talk to your child about sexual victimization and potential online danger.
  • Spend time with your children online.
  • Keep the computer in a common room in the house, not in your child’s bedroom.
  • Utilize parental controls provided by your service provider and/or blocking software. While electronic chat can be a great place for children to make new friends and discuss various topics of interest, it is also prowled by computer-sex offenders.
  • Always maintain access to your child’s online account and randomly check his or her e-mail.
  • Teach your child the responsible use of online resources.
  • Find out what computer safeguards are utilized by your child’s school, the public library and at the homes of your child’s friends.
  • Understand, even if your child was a willing participant in any form of sexual exploitation, that he or she is not at fault and is the victim.

 Instruct your children:

 To never arrange a face-to-face meeting with someone they met online.   To never upload (post) pictures of themselves onto the Internet or online service to people they do not personally know.   To never give out identifying information such as their name, home address, school name or telephone number.   To never download pictures from an unknown source.   To never respond to messages or bulletin board postings that are suggestive, obscene, belligerent or harassing.   That whatever they are told online may or may not be true.

Source: Federal Bureau of Investigation Innocent Images National Initiative

 Tips for Teens who Socialize Online:

 WHAT TO TYPE: Be smart. If you don’t use privacy settings, anyone has access to your blog or profile, not just people you know.

 DON’T:

 ● Post your cell phone number, address or the name of your school.

● Post your friends’ names, ages, phone numbers, school names or addresses.

  Add people as friends to your site unless you know them in person.

  Communicate with people you don’t know.

 Give out your password to anyone other than your parent or guardian.

  Meet in person with anyone you first “met” on a social networking site.

  Respond to harassing or rude comments posted on your profile.

  Make or post plans and activities on your site.

  Post photos with school names, locations, license plates or signs.

  Post photos with the name of your sports team.

  Post sexually provocative photos.

  Respond to threatening or negative e-mails or IMs.

 DO:

 ● Check the privacy settings of the social networking sites that you use.

● Set privacy settings so that people can only be added as your friend if you approve them.

● Set privacy settings so that people can only view your profile if you have approved them as a friend.

● Remember that posting information about your friends could put them at risk.

● Consider going through your blog and profile and removing information that could put you at risk.

● Delete any unwanted messages or friends who continuously leave inappropriate comments.

● Report comments to the networking site if they violate that site’s terms of service.

● Save or print questionable activity and include date and time.

● Tell your parents or guardian if anything happens that makes you feel scared, uncomfortable or confused.

Source: www.2SMRT4U.com (2SMRT4U campaign sponsored by The

National Center For Missing & Exploited Children and the U.S.Postal Inspection Service.)

This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


KIDS AND TRAFFIC LAW

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

Many youngsters are eager to know when they can get a driver’s license. In California, they must be at least 16 years old to be eligible for a provisional driver’s license. (VC § 12814.6) And there are special restrictions and requirements for drivers under 18. But even before a teenager can get a provisional license, he or she must obtain an instruction permit (also called a learner’s permit) from the Department of Motor Vehicles (DMV). (VC § 12509) To get such a permit, the teenager must:

●Be at least 15-1/2 years old but not yet 18.

●Submit an application form and a form showing completion of driver education and enrollment in or completion of driver training or enrollment in an integrated driver education/driver training program. The application form must be signed by the teen’s parents or guardians.

●Give a thumbprint.

●Pass a vision exam.

●Provide his or her Social Security number.

●Verify birth date and legal presence.

●Have his or her picture taken.

●Pay an application fee.

●Pass a written examination on traffic laws and signs.

 

Once all of these steps have been completed, the DMV will issue your child a learner’s permit. If the minor is over 17-1/2 years of age, he or she can obtain such a permit without the education or training requirements. It is illegal for a permit driver to drive alone. A parent, guardian, spouse or adult (age 25 or older) with a valid license must be in the car at all times and be able to take control of the vehicle if necessary.

 To get a provisional license, your child must:

 ●Be at least 16 years old.

●Finish both driver education and six hours of professional driver training and receive the proper certification. (DMV form DL 388 or OL 237, 238) Or, complete an integrated driver education/training program of 30 hours of instruction and six hours behind the wheel.

●Have a learner’s permit for at least six months.

●Provide a parent’s signature (or other acceptable signature) on his or her learner’s permit stating that all of the driving practices outlined in the Parent-Teen Training Guide have been completed. You can get this booklet at local DMV field offices or by visiting www.dmv.ca.gov(go to More DMV Publications) or by calling 1-800-777-0133(talk to an agent).

●Complete 50 hours of supervised driving with an adult (age 25 or older) who has a valid Californiariver’s license. Ten of the 50 hours must be done at night. The adult must certify the 50 hours of driving practice.

●Pass the behind-the-wheel driving test and a written exam. (The teenager must bring proof of insurance for the car in which the driving test is taken.)

Once your child has a provisional license, he or she can drive alone. However, the law does impose certain restrictions on drivers under the age of 18:

●For the first 12 months, the minor may not drive with anyone under the age of 20 in the car and may not drive between the hours of 11 p.m. and 5 a.m., unless accompanied by a driver who is age 25 or older. In certain circumstances (the minor’s sibling, for example, has no other transportation to and from school), an exception may be made if the minor meets certain criteria. 

●Teenagers under 18 may not be employed as drivers. (VC § 12515) When a minor reaches age 18, the provisional part of the license ends. The license is still valid as a driver’s license until the next period for renewal, which would be the driver’s fifth birthday after initially applying for the provisional license.

Minors over the age of 14 can get a junior permit under certain circumstances, such as when there is inadequate school transportation or transportation due to an illness in the family. Or, such a permit might be allowed if the minor needs it for transportation to and from a job and the minor’s income is essential to the support of his or her family. (VC § 12513) In addition, a student driver’s license may be obtained by a student who is over 15 years old and is taking driver training in a public, parochial or private secondary school with the consent of the school principal and parents. (VC § 12650)

 Liability and auto insurance:

 For parents, children and driving means dealing with additional car insurance. Many parents simply add their child to their own policy, but this can be expensive. In California, minors who get their own policies are required to have the following minimum auto insurance coverage: (VC § 16430)

●$15,000 for the injury or death of one person per accident.

●$30,000 for the injury or death of two or more people per accident (still subject to the $15,000 maximum per person).

●$5,000 for property damage per accident.

 Note:In signing the form for their teenager’s provisional driver’s license, parents (or the sole parent or legal guardian) agree to accept financial responsibility for their child. However, in most cases, parents can’t be held liable for more than the amounts listed above. (VC § 17709)

Keep in mind that such insurance is intended to protect your child from losses as a result of an accident that he or she has caused. Since youthful drivers often get into accidents during their first few years of driving, it might be wise to obtain more than the minimum amount of auto insurance required on a car that will be driven by your child.

In addition, the liability limits do not apply when a parent has negligently entrusted their vehicle to the child. For example, the parents could be found liable if they knew (or should have known) of their child’s poor driving record, past accidents or drinking problem—and still permitted the child to drive his or her own car or a family car. In that case, the parents could be found liable for up to the full amount of damages if the child causes an accident. (VC § 17708)

All drivers must carry liability insurance to insure against injuries the driver causes to someone else or their property while operating any motor vehicle. Evidence of insurance or other mandated financial coverage must be carried in the vehicle at all times. (VC §§ 16020, 16028) A driver could be fined up to $200, plus penalty assessments, for a first offense of driving without proper insurance. (VC § 16029)

 Alcohol and cars:

 In California , it is unlawful for anyone—driver or passenger—to possess an open container of alcohol in an automobile. (VC §§ 23223, 23226) Possession of an open container of alcohol inside a car could lead to $1,000 in fines and six months in jail. A minor’s license can be suspended or delayed for a year in such circumstances.

Laws related to driving, alcohol and minors are particularly strict. It is illegal to carry a closed container of alcohol in a vehicle if anyone in the car—driver or passenger—is under 21 unless the person is accompanied by a parent, legal guardian or other responsible adult designated by the parent or guardian. If the car’s registered owner (whether he or she is driving or simply a passenger) illegally possesses an alcoholic beverage, the vehicle can be impounded for up to 30 days. An exception to this law would apply if the minor works for a licensee of the Alcoholic Beverage Control Actand is transporting alcohol during normal business hours. (VC § 23224) In addition, it is illegal for anyone under the age of 21 to drive a vehicle if he or she has a blood-alcohol concentration (BAC) of 0.01 percent or more. (VC § 23136) For adults who are 21 or older, the illegal BAC is higher, 0.08 percent or more. (VC § 23152(b))

 What will happen if my teenager is stopped by police for driving under the influence of alcohol?

 The police officer may administer a breath, blood or urine test to determine the driver’s blood-alcohol level. And the driver may not refuse to take this test without facing serious penalties. Those who do not submit to a BAC test could be fined or imprisoned and could have their driver’s license suspended or revoked for a period of one to three years. (VC §§ 13353.1, 23136, 23612)

And even if a breath, blood or urine test is not performed, a young person could still be convicted of driving under the influence (DUI). A chemical test is not required for a conviction if the judge or jury concludes that the person under the age of 21 did consume an alcoholic beverage and was driving a vehicle. (VC § 23140)

If your child is convicted of DUI and is under 18, his or her license will be revoked until he or she reaches the age of 18, or for one year, or for even longer if he or she has committed prior offenses. (VC § 13352.3)

In most cases, a minor convicted of DUI also would be required to participate in an alcohol education or community service program. If the individual is over 18, he or she would be required to pay the cost of attending this program; otherwise, the expense would be charged to the minor’s parents. (VC § 23520) If your child fails to complete a court-ordered alcohol education or community service program, a court might revoke or suspend his or her driver’s license. And if the minor does not yet have a license, he or she would be delayed in receiving one. These sanctions would remain in effect until the minor completes the court-ordered program or reaches age 21. (VC § 23502)

Finally, anyone who has a driver’s license suspended or revoked may also have his or her car insurance canceled. And a DUI conviction disqualifies an individual from receiving a “Good Driver Discount” insurance policy for the next 10 years. (IC § 1861.025)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


CHILDREN AND GANGS

Thank you to the State Bar of California which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

 An estimated 80,800 gang members belong to street gangs in Los Angeles County alone. Traditionally urban, gangs now exist in every corner of the state. And as they have increased in size and presence, they have grown more violent as well. In response to gangs carrying guns and terrorizing neighborhoods,Californialawmakers have passed laws to help combat gang-related problems.

First, there is the California Street Terrorism Enforcement and Prevention Act. (PC §§ 186.20 et seq.) Enhanced in part by the passage of Proposition 21 and the implementation of the Gang Violence and Juvenile Crime Prevention Act of 1998, the Street Terrorism Enforcement and Prevention Act provides more severe penalties for those who commit gang-related crimes. Committing a violent felony in association with a criminal street gang could, for example, add 10 years to the individual’s prison sentence. (PC § 186.22(b)(1))

A criminal street gang is defined as a group of three or more individuals whose primary intent is to commit one or more specific criminal acts and whose members have been involved in a pattern of criminal gang activity. (PC § 186.22(f)) These specific criminal acts include, for example, assault with a deadly weapon, the sale or transportation of controlled substances, robbery, homicide, burglary, rape, kidnapping, identity theft and carrying a concealed or loaded firearm.

(PC § 186.22(e)) Parents of gang members can be prosecuted and held criminally liable for their child’s gangrelated activities. If the parents fail to exercise reasonable care, supervision and control over their minor child, they can be charged with contributing to the delinquency of a minor. (PC § 272) By law, such neglect is punishable by up to one year in jail and a fine of $2,500. (PC § 272(a)(1)) (See Parents’ Rights and Responsibilities.)

In addition, recruiting or coercing someone to participate in a criminal street gang (or preventing someone from leaving the gang) can lead to five years in prison. And if the targeted recruit was a minor, three more years will be added to the sentence. (PC § 186.26)

 Anti-gang injunctions:

Some cities in California and other states have been granted civil injunctions restricting the members of certain gangs from gathering together in business establishments or public places in specific neighborhoods. Such injunctions may prohibit the gang members from, for example, wearing clothing that bears gang insignia or talking on cell phones in certain areas. Under public nuisance law (CC § 3480), cities have imposed up to six months in jail or a $1,000 fine against gang members who violate the injunction.  

 Why do kids join street gangs?

 There are many reasons. For example, joining a street gang gives some youngsters a sense of being part of a team, experts and children say. It may boost their selfesteem and give them a feeling of significance. Some children are seeking protection from other gangs, school acquaintances or adult figures of one type or another. Some join gangs to rebel. Some are seeking to become leaders with the power, respect and backing of an organized group. And some see it as a way to make money. For tips on recognizing and preventing gang involvement, go to www.fbi.gov (click on More Tips and Suggestions under Be Crime Smart).

MYTH: Some children, as well as parents, believe that membership in a street gang is against the law. However, gang membership alone is not against the law. In fact, many would argue that such membership is constitutionally protected. While laws like the California Street Terrorism Enforcement and Prevention Act and the Gang Violence and Juvenile Crime Prevention Act seek to discourage involvement in street gangs, it is the participation in criminal gang-related activities, not gang membership, that will enhance the punishment for acts committed in association with a gang.

 DRESS CODES

 Restricting gang colors and dress is another way in which California has tackled gang-related problems. In recent years, legislation has given public school officials more authority to ban gang-related apparel and to require students to wear school uniforms. (Ed.C § 35183(b)) Many educators believe that tighter restrictions on dress and dress codes can reduce discipline problems and encourage greater cooperation, school spirit and academic achievement as well. In developing a school dress code or uniform policy, the only legal restrictions are:

● Parents must be included in the decision-making process. (Ed.C § 35183(b))

● Parents must be given at least six months’ notice of the effective date of the new dress policy. (Ed.C 35183(d))

● Resources and funding assistance must be made available to parents and disadvantaged pupils, if needed, to acquire uniforms. (Ed.C 35183(d))

● Parents must be given a choice to exclude their children from the uniform requirement. (Ed.C 35183(e))

● The dress policy must be part of a larger effort of the school to combat real or threatened problems on the school campus.

This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com