Introduction

Although the law usually lets parents decide how to raise their children, in certain circumstances the state gets involved in the relationships between parents, children, and those who are otherwise responsible for the care and education of children. The law regulates some methods of having a child, such as artificial insemination and adoption, as well as controlling what happens to children when parents divorce or die. Children whose parents are unable to care for them may be removed from their home and put in alternative living arrangements. The law also grants children rights in school, in the courtroom, and at home.

TOPICS
Adoption
Age of Majority
Birth Certificates
Breastfeeding
Child Abuse and Neglect
Child Support
Children Born to Unmarried Parents
Custody
Donor Insemination
Education
Emancipated Minors
Foster Care
Gay and Lesbian Parents
Grandparents’ Rights
Guardianships
Housing Discrimination
Juvenile Court
Parental Kidnapping and Custodial Interference
Parents’ Liability for Their Children’s Acts
Safety
Students and Teachers
Visitation

RELATED TOPICS
Employees’ Rights
  Child Labor
  Family and Medical Leave
Government Benefits
Inheritance and Wills
  Inheritance by Minor Children
Traffic and Vehicle Laws
  Seatbelt and Child Restraint Requirements
Landlords and Tenants
  Discrimination
Relationships

ADDITIONAL RESOURCES
Legal Services for Children, Inc., 1254 Market Street, 3rd Floor, San Francisco, CA 94102, 415-863-3762, www.lsc-sf.org, gives information, referrals, and legal assistance to minors.

Adopting in California: How to Adopt Within One Year, by Randall Hicks (Wordslinger Press), explains all types of adoption procedures in California.

The Essential Adoption Handbook, by Colleen Alexander-Roberts (Taylor Pub.), covers domestic, international, and open adoptions.

The Adoption Resource Book, by Lois Gilman (Harper Collins), explains independent, interstate, and foreign adoptions.

North American Council on Adoptable Children, 970 Raymond Avenue, Suite 106, St. Paul, MN 55114-1149, 651-644-3036 (direct), 651-644-9848 (fax), www.nacac.org, is a coalition of adoptive parent support groups that makes referrals to local organizations.

International Vital Records Handbook, by Thomas Jay Kemp (Genealogical Publishing Co., Inc.), gives information on how to get a birth certificate from any country. Order forms are included.

How to Change Your Name in California, by Lisa Sedano and Emily Doskow (Nolo), provides step-by-step instructions for changing your name; it includes information on birth certificates and also instructions for completing a legal gender change.

California Divorce Helpline, 800-359-7004, gives legal information about child support, charging $10 for your call and $5 per minute, and can also run a computerized support calculation program to determine child support payments for about $75. See www.divorcehelp.com for more services and information.

Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo), explains child custody, divorce mediation, and collaborative law, including what to expect from the process and how to work out the best arrangements with a former spouse.

Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn’t Last, by Mimi Lyster (Nolo), shows separating or divorcing parents how to create win-win custody agreements.

National Center for Lesbian Rights, 870 Market Street, Suite 370, San Francisco, CA 94102, 415-392-6257, www.nclrights.org, provides legal information, referrals, and assistance to lesbian and gay parents and publishes Lesbians Choosing Motherhood: Legal Implications of Alternative Insemination and Reproductive Technologies.

A comprehensive website for gay and lesbian parents—and those considering parenting—is www.familyequality.org.

The Guardianship Book for California: How to Become a Child’s Legal Guardian, by David Brown and Emily Doskow (Nolo), contains all forms and instructions necessary to become a child’s guardian.

Law in the School, Crime and Violence Prevention Center, 1300 I Street, Suite 1150, Sacramento, CA 95814, 916-324-7863, www.safestate.org, gives detailed information about the rights of students and teachers in California schools.

Nolo’s IEP Guide: Learning Disabilities, by Lawrence M. Siegel (Nolo), explains special education law and the special education process, with an emphasis on learning disabilities.

Adoption

Adoption is a court procedure by which an adult legally becomes the parent of someone who is not that person’s biological child. Adopting parents assume legal responsibility for the child—including the duty to provide support—and the child inherits from the adoptive parents as if they were birth parents. The birth parents’ legal relationship to the child is terminated unless there is a legal contract allowing them to retain or share some rights (as in a stepparent or domestic partner adoption).

Consent of the Birth Parents

The natural parents of a child who is the subject of an adoption proceeding each have the right to be notified of a proposed adoption and to object to it. Each parent’s rights depend on the degree to which that parent has been involved in raising and caring for the child.

A man is presumed to be a child’s natural father and is entitled to notice of adoption proceedings regarding the child if any of the following is true:

• He was married to the mother when the child was born or was married to the mother before the child’s birth and the child was born within 300 days of the end of the couple’s marriage by divorce, legal separation, annulment, or death.
• He attempted to marry the mother, but the marriage was not valid for some technical reason.
• He married the child’s mother after the child was born (even if the marriage was later annulled), and he was willingly named on the birth certificate as father, or he paid child support under a written promise or court order.
• While the child was a minor, he welcomed the child into his home and openly held the child out to be his natural child. (Fam. Code § 7611.)

A woman who gives birth does not need to take any special steps to be presumed the natural mother.

A natural (or presumed) parent must give consent before an adoption can take place, unless that person’s parental rights have been terminated for some reason, such as abandonment or unfitness. A parent’s rights can be terminated if the parent has willfully failed to communicate with or financially support the child for at least one year.

Types of Adoption

• Stepparent adoption occurs when a parent with custody of a child marries or registers with a domestic partner, and the new partner adopts the child. Consent of the child’s other parent may be necessary (see above). The natural parent and the new spouse or registered domestic partner must file a petition in superior court, after which a social worker will conduct an investigation and write a report for the judge. If the report is favorable, the judge is likely to grant the adoption.
• Domestic partner adoption is like a stepparent adoption in that the registered domestic partner of a legal or biological parent may adopt that parent’s child. Even though registered domestic partners can both be included in a child’s birth certificate if the child is born during the partnership, adoptions are still recommended. Domestic partner registration is available only to same-sex couples in California, so heterosexual partners must either marry to take advantage of stepparent adoption rules or complete a second parent adoption, described below.
• Second parent adoption is an independent adoption (see definition below) by an unmarried partner in a heterosexual or same-sex relationship, where the partner becomes a legal parent while the child’s parent retains parental rights (the same as in a stepparent or domestic partner adoption). Second parent adoption is an option for same-sex couples who aren’t eligible for domestic partner registration because they do not live together or are in the process of terminating a previous domestic partnership, for example, and for heterosexual couples who are parenting together but do not wish to marry.
• Agency adoption occurs when a licensed public or private adoption agency places a child in the home of adopting parents. The agency will make sure that the birth parents’ rights have been terminated before the placement. The adopting parents must file a petition, submit to an investigation by a social worker, and be approved by a judge.
    Adoption agencies are usually extremely selective because they have long waiting lists of prospective parents. Private agencies usually charge between $1,000 and $6,000 for placing young children and up to $30,000 for placing newborns.
• County adoption occurs when the county has custody of a child because the parents have abused, neglected, or abandoned the child or the child has been declared beyond the parents’ control. These children are usually placed in foster homes while efforts are made to reunite the family; typically, parents must agree to attend parenting classes or counseling and must meet other conditions imposed by the judge. If, after 18 months, the parents have not met the conditions for reunification, the judge terminates their parental rights and frees the child for adoption. These children are sometimes adopted by their foster parents.
• Independent adoption, also called private adoption, occurs when birth parents consent to place a child directly with the adoptive parents, without any agency participation. Although it is illegal in California for adoptive parents to advertise that they are looking for a baby to adopt (Fam. Code § 8609), few other state laws regulate independent adoption. In some counties—such as Los Angeles— local law requires that the birth mother and adoptive parents meet in person. The adoptive parents may pay the medical, legal, and other necessary living expenses of the mother. However, if the birth mother decides not to go through with the adoption, the adoptive parents are not entitled to get their money back.
    As in other kinds of adoption, in an independent adoption the adoptive parents must file a petition in superior court, be investigated by a county social worker, and be approved by a judge. The adoption becomes final about six months after the birth parents agree to give up their parental rights.
• Intercountry or international adoptions occur when parents adopt a child from outside the U.S. Adoptive parents may (and sometimes must, depending on the country) readopt the child in California. The advantage to doing so is that a new California birth certificate will be issued. (Fam. Code § 8904.) In 2007, the U.S. agreed to participate in the Hague Convention, an international treaty governing intentional adoptions. It’s unclear what all the consequences of this action will be, but it’s likely that international adoptions will become more difficult and the countries from which children are available will be more limited.
• Adult adoption. Adults can be adopted by other adults in certain circumstances. The adopting parent must be at least ten years older than the person being adopted, and the relationship cannot be a sexual one. Upon the adoption, the adoptee’s relationship with his or her birth parents is terminated, unless the adoption is by a stepparent who is married to the adoptee’s birth parent.

Age of Majority

Every state designates children as minors until they reach a certain age: the age of majority. In California, that age is 18. (Fam. Code § 6501.)

A minor may not give legally binding consent in many situations. (Fam. Code §§ 6700, 6701, 6920, 6921, 6925, 7050.) Specifically, a minor may not:

• enter into a contract relating to real estate or the sale of personal property not in the immediate possession of the minor
• buy or sell property, including real estate and stock
• get married without the written consent of parents or guardian and a judge
• sue or be sued in his or her own name (except in a personal injury lawsuit)
• compromise, settle, or arbitrate a claim
• make or revoke a will, or
• inherit property outright—it must be supervised by an adult.

However, a minor in California may:

• donate blood if the minor is at least 17 years old, or is at least 15 years old and has the written consent of parents or guardian and a doctor (H & S Code § 1607.5.)
• consent to hospital, medical, or surgical care if he or she is legally married or on active duty in the armed services (Fam. Code §§ 7002, 7050.)
• consent to mental health treatment or counseling on an outpatient basis or participate in a decision to consent to residential shelter services if the minor is at least 12 years old, is determined to be sufficiently mature to consent to residential shelter services, or is otherwise emancipated. (Fam. Code §§ 6920, 6921, 6924.)
• consent to pregnancy treatment, treatment for a communicable disease, treatment after a sexual assault, and drug or alcohol treatment. (Fam. Code §§ 6925, 6926, 6927, 6929.)

Birth Certificates

A birth certificate is a document that officially records the birth of a child. Birth certificates give the child’s name and sex, the names of the child’s parents, and when and where the birth took place. Birth certificates are usually completed by hospital personnel or the person delivering the baby, such as a midwife.

How to Get a Copy of a Birth Certificate

To obtain a certified copy of a birth certificate from the Office of Vital Records, mail your request to the California Department of Health Services, Office of Vital Records, M.S. 5103, P.O. Box 997410, Sacramento, CA 95899-7410. You can check procedures for obtaining records at the Office of Vital Records website at www.dhs.ca.gov/hisp/chs/OVR/ordercert.htm. You can get copies more quickly by going to the county recorder in the county where the birth took place or, if the birth was within the last two years, to the county health department in that county. Another good resource for getting a birth certificate or other similar documents, especially if the birth was outside of California, is www.vitalcheck.com.

Unmarried Parents

If the parents of a child are not legally married, the father’s name will not be added to the birth certificate unless he:

• signs a voluntary Declaration of Paternity in the hospital, or
• signs the form later or legally establishes paternity and pays to amend the birth certificate. (H & S Code § 102425.)

Amendments to a Birth Certificate

Birth certificates may be amended in certain situations. The amendment is attached to the birth certificate and becomes an official part of the birth record. Amendments are allowed only in order to:

• Reflect a court-ordered name change and/or gender change. If you obtained a name change from any court in the United States or territory, you may add this name to your birth certificate. (H & S Code § 103400.)
• Add a parent’s new name to a child’s birth certificate. If a parent’s name is changed by usage or court order, an attachment may be added showing the parent’s new name. The attachment indicates that the parent is "AKA" (also known as) and gives the new name.
• Add the father’s name to the birth certificate. For unmarried parents, the father’s name may be added to the birth certificate after the father signs a voluntary Declaration of Paternity or paternity is otherwise legally established. (H & S Code § 102766.)
• Correct minor typographical errors or omissions on the original birth certificate. Minor errors or missing information may be corrected by amendment. There is no charge for correcting errors to a birth certificate if the change is made within one year of a child’s birth. (H & S Code §§ 103225–103255.)

If the incorrect sex is listed and the birth was recent, a hospital official should complete an affidavit (sworn statement) indicating the error. This affidavit should be sent with the application to amend.

If the wrong father was listed on the birth certificate, an attachment cannot be used to correct either the certificate or the child’s last name, regardless of the explanation. In that case you’ll need a judicial decree of paternity, discussed below.

How to Get a New Birth Certificate

When a new birth certificate is issued, the old one is sealed, and no one can look at it without a special court order. A new California birth certificate is issued only in these circumstances:

• Acknowledgment of paternity. If a birth certificate omits a child’s father, or the father is listed but the child’s last name is different from the father’s, a new birth certificate is available. (H & S Code §§ 102750–102765.) The mother and father acknowledging paternity both must sign statements under penalty of perjury confirming that they are the natural parents and requesting changes to the birth certificate. The child’s name may also be changed to reflect the father’s last name.
• Judicial decree of paternity (court order required). If a court in the United States finds that a man is the father of a child and issues an order stating this fact—often referred to as a "judicial decree of paternity" or "adjudication of paternity"—a new birth certificate may be issued. Information about the father may be included on the birth certificate, and the child’s last name may be changed to that of the father. (H & S Code §§ 102725–102735.)
• Adoption (court order required). A new birth certificate may be issued for an adopted child in the name of the new parents (including same-sex adoptive parents). (H & S Code § 102635.) The court clerk (or agency, if the adoption was outside of California) must send notice of the adoption to the Office of Vital Records within five days after the adoption is finalized. (H & S Code § 102625.)
• Sex change operation (court order required). People born in California who have undergone a surgical sex change operation may obtain a new birth certificate reflecting their new name and sex. They must first go to court and obtain an order that affirms both the sex change and the new name. (H & S Code §§ 103425–103445.)
• Offensive racial description. Upon request, a new birth certificate will be issued if the original contains a derogatory, demeaning, or colloquial racial description and the person prefers a different racial description. (H & S Code §§ 103260, 103350–103375.)

Breastfeeding

A mother may breastfeed her child in any location, public or private, where the mother and child are otherwise authorized to be present, except in the private home or residence of another who objects. (Civ. Code § 43.3.)

Child Abuse and Neglect

Child abuse is any physical injury or mental suffering inflicted on a child by other than accidental means. Child abuse may be sexual in nature: touching a child’s genitals or other private parts for sexual gratification, masturbating in front of a child, or filming or photographing a child participating in actual or simulated sex acts. Child abuse is a felony punishable by up to six years in state prison for a first offense. (Pen. Code §§ 273a, 11165.1, 11165.6.)

Child neglect is the mistreatment or negligent (unreasonably careless) treatment of a child by a person responsible for the child’s welfare, in circumstances that threaten or cause harm to the child. Failure to provide necessary food, clothing, shelter, supervision, or medical care (except in the case of treatment by spiritual means) all constitute neglect. Neglect is a misdemeanor, punishable by up to one year in the county jail, a fine of up to $2,000, or both. (Pen. Code §§ 270, 11165.2.)

When a report of suspected child abuse or neglect is made, Child Protective Services (a branch of the California Department of Social Services) must immediately assess the child’s safety. A child in serious danger will be removed from the home at once. Then a case plan will be developed, with the ultimate goal of safely reuniting the child with his or her family. In some cases, the state may require counseling or parenting classes. If the child cannot return home safely, the child will stay in foster care and eventually be freed for adoption. (Welf. & Inst. Code §§ 16500 and following.)

Reporting Requirements

Teachers, administrators, camp counselors, clergy members (priests, ministers, rabbis), foster parents, and others whose job responsibilities include direct supervision of children have a legal duty to report suspected child abuse or neglect to a police or sheriff’s department, a county probation department, or a county welfare department. These people must report their suspicions immediately by phone and submit a written report within 36 hours. Similarly, any commercial film or photographic print processor who sees a depiction of a child under 16 engaged in sexual acts must telephone and submit a written report, including a copy of the material in question, to the local law enforcement agency within 36 hours. (Pen. Code § 11166.)

If, upon further investigation, it appears that the person making the child abuse report was mistaken, that person cannot be held liable for the mistake as long as it was honest; this encourages reporting. However, someone who makes what the person knows or should know to be a false report of child abuse is liable for any damages caused by that report. (Pen. Code § 11172.)

Lawsuits for Sexual Abuse

Some people who suffered sexual abuse as children don’t remember the abuse until much later in their lives. When these memories surface, some want to sue their abusers. Formerly, these lawsuits were barred by statutes of limitation, which prevent personal injury suits that aren’t brought within a certain time following the injury. However, in California, lawsuits based on sexual abuse suffered as a child can be brought until the person reaches age 26, or until three years have passed since the person discovered or reasonably should have discovered that their injuries were related to childhood sexual abuse. If suit is brought after the person turns 26, the victim’s attorney and a licensed medical health practitioner must file statements with the court asserting that they believe the lawsuit has merit. (Code of Civ. Proc. § 340.1.) Some other rules may apply in specific circumstances, so look carefully at the statute and consult a lawyer if you have any questions about these time limits.

Child Support

Parents are legally obligated to support their children until the children turn 18. The obligation may continue until age 19 if the children are attending high school full-time and aren’t self-supporting. Parents may have to support a child beyond age 19 if the child is disabled and can’t become self-supporting.

The actual amount of support owed a child is usually set in court orders issued in divorce or paternity actions. Typically, the noncustodial or "absent" parent is required to contribute a share of the support directly to the custodial parent, who uses it for the benefit of the children.

How the Amount Is Determined

The amount of child support owed by a parent is based on the net monthly income of each parent, the amount of time each parent spends with the children, and the number of children to whom support is owed. The actual figure is determined using an algebraic formula that is so complex that virtually all judges and divorce lawyers rely on computers to get it right.

Generally, the higher a noncustodial parent’s income, the higher the support payments will be, especially if the custodial parent’s income is significantly lower. However, the more time a noncustodial parent spends with the children, the greater the amount the court will presume that parent spends on the children—so a noncustodial parent with very little visitation will have higher payments than a noncustodial parent with equal custody.

When an initial figure is determined, it is adjusted to account for the number of children receiving support. Then, that figure will usually be increased by:

• a percentage of any necessary child care costs incurred by the custodial parent (at least one-half but possibly more if the noncustodial parent’s income allows), and
• uninsured health care costs incurred by the children.

In addition, the judge may increase the child support obligation if any of the following is true:

• The noncustodial parent has remarried or has a live-in partner and the new spouse or partner contributes enough to their joint living expenses to free up additional money for support (but only in extraordinary circumstances and not more than 20% of the new spouse or partner’s income).
• The custodial parent has or anticipates having uninsured health care costs.
• The custodial parent suffers "extreme financial hardship" because of uninsured catastrophic losses.
• The custodial parent is supporting either natural or adopted children from other marriages or relationships.
• A child needs to attend private school or has special needs that require additional support.
• The custodial parent has transportation expenses made necessary by the noncustodial parent’s visits with the child.

Judges also have authority to change the formula amount if they conclude, in writing, that its application would be unjust or inappropriate due to special circumstances in the particular case.

Finally, judges may depart from guideline support amounts if any of the following is true:

• The parents agree to something else.
• Sale of the family home is postponed by the court and the custodial parent and children are allowed to stay there for some specified period of time to provide stability for the children.
• Either parent has remarried or has a new nonmarital partner who is helping with basic living expenses.
• The noncustodial parent has such an extraordinarily high income that the amount produced by the formula is more than the children need.
• The noncustodial parent is not contributing to the needs of the children at a level commensurate with each parent’s custodial time.
• The noncustodial parent has a net monthly income of less than $1,000.

Modifying Child Support

Once child support is established, it can always be modified if circumstances change. Changes that lead to modification most often involve sudden decreases in income because of job loss, disability, or medical emergencies. But a significant change in the cost of living over time or an important change in the child support laws can also result in a modification.

Enforcement of Child Support

Child support obligations can be enforced in many different ways. The most effective technique is to use a court order called a wage attachment that automatically deducts money from the noncustodial parent’s paycheck. Other enforcement techniques a judge or government agency can order include:

• intercepting federal and state tax refunds and lottery winnings
• suspending professional, business, and commercial drivers’ licenses
• refusing to issue or renew a passport
• requiring the noncustodial parent to deposit a year’s worth of child support payments in a special security fund
• requiring the noncustodial parent to post sufficient assets with the court to cover two years of support
• requiring an unemployed or underemployed parent to prove he or she is looking for a job and to undergo job training if necessary, and
• filing an action against a nonpaying parent for contempt of court.

Once a child support obligation becomes due, it cannot later be cancelled by court order or bankruptcy. This means that any missed child support payments will be considered arrearages that can be collected using the techniques described above or through a court judgment. Because of the rule that child support arrearages are never cancelled, it is very important for a noncustodial parent to seek a modification promptly if the parent is unable to make the payments required by a child support order.

Children Born to Unmarried Parents

Children whose parents are not married, or were not married at the time of the children’s birth, have all the same rights as children of married parents, including the right to support from both parents. (Fam. Code § 7602.) These children are also entitled to Social Security or private insurance benefits if a parent becomes disabled or dies, provided that parentage can be proven.

Parental Rights

Sometimes the rights of the parents depend on whether or not they have treated the child as their own and supported the child. For example, a parent cannot inherit from a child born out of wedlock unless the parent or a relative of the parent has acknowledged the parent-child relationship and contributed to the child’s support. (Probate Code § 6452).

More important, if the father of a child born out of wedlock doesn’t acknowledge his child (sign a paternity statement or welcome the child into his home) or assume the role of a parent (support and visit the child), a court can limit or end his parental role––for example, allow the child to be adopted despite the father’s opposition.

Inheritance

For purposes of inheritance, a child of unmarried parents is treated the same as a child whose parents are married. For example, if a parent dies without leaving a will, all children of that parent inherit equally under the state law that determines inheritance. And if a parent’s will leaves property to "my children," this group includes all children, whether born within or outside of marriage. (Probate Code § 6450.)

Custody

One of the most important issues when couples split up is who gets custody of their minor children. Custody has two components: Legal custody is the right and responsibility of child-rearing, including the right to make decisions affecting the child’s life. Physical custody is providing a home for the child and having actual physical control over the child.

When parents share custody, it is called joint custody. Joint custody may be joint legal custody, joint physical custody, or both.

How Custody Is Determined

If you and your spouse or partner can agree on how you want to share time with your kids, you can keep those decisions in your family and just ask a judge to approve your plan as part of your divorce settlement. A judge ultimately has the last word on who gets custody, although if the parents reach a custody agreement between themselves, the judge is likely to follow it. The judge’s decision must be based on the child’s best interests. California no longer has a statutory preference for joint custody (shared legal or physical custody). Joint custody, however, is still presumed to be in the child’s best interests if the parents choose it. (Fam. Code §§ 3002–3004, 3006, 3007, 3011, 3080–3089.) Even if joint custody is not considered appropriate by the parents or the judge, the judge will try to make sure that the child has frequent contact with both parents. The parent who is more likely to allow frequent contact between the other parent and the children is usually favored in a custody dispute.

The court cannot consider the race or sex of a parent in determining custody, nor can the court award custody based on which parent has more money. If the child is old enough to have a reasonable preference about custody (usually 12 or older), the court must consider this preference.

In those rare situations when neither parent is fit for custody and the judge decides that parental custody would be harmful to the child, the judge can award custody to someone else, preferably to a person who has already been providing the child a stable environment. If the child has not been living with such a person, the judge can award custody to any person found suitable who is willing and able to provide proper care and guidance for the child.

Disputing Custody

If parents can’t agree about custody, mediation is mandatory before the dispute can be resolved by a judge. The court-appointed mediator tries to help the parents agree on custody. Mediation sessions are private and are often conducted without lawyers. If there is any history of domestic violence, the mediator may meet with the parents separately. (Fam. Code §§ 3160, 3162, 3170, 3173, 3176–3177, 3181.) The mediator will also meet with the children, if they are old enough.

If the parents still can’t agree, in some counties the mediator makes a recommendation to the judge, based on what the mediator thinks is best for the children. (In other counties the mediation is confidential.) Absent a history of abuse of the child, the mediator will usually suggest an arrangement that lets the child stay in a familiar school and neighborhood, continue to see relatives, and maintain the closest possible relationship with both parents. Courts almost always adopt mediators’ recommendations.

Modifying Custody Orders

The court can modify custody and visitation if a parent with joint custody shows that there has been a significant change in circumstances since the previous order, or shows that the other parent has interfered with custody or visitation. As with the original custody decision, the question is referred to mediation before a judge rules on it. However, a parent with sole physical custody who wishes to move and take the child along no longer needs to prove that the move was "necessary" for employment or financial reasons. The custodial parent can move for more personal reasons, such as convenience, unless the noncustodial parent can persuade the court that a hearing is required to determine whether the move would be harmful to the child. ( Brown v. Yana, 37 Cal. 4th 947 (2006).) The law in this area is in flux, so if you are contemplating a move or have an ex-spouse who is, consult an attorney about your rights.

Taxes and Child Custody

Each year, only one parent can claim the child as a dependent on his or her income tax return. This is true even if parents have joint custody. If the custodial parent will not claim the exemption, that parent must sign a declaration waiving her right. Each parent can deduct the amount that parent spent on a child’s medical expenses, regardless of who takes the dependent deduction.

Interstate and International Child Custody Disputes

To avoid conflicting custody decrees—which arise if one parent is awarded custody in one state and the other parent is awarded custody in a different state—every state has adopted the Uniform Child Custody Jurisdiction Act. (Fam. Code §§ 340 and following.) The Act requires that a state meet at least one of the tests below before its courts may make or modify a custody award. These tests are listed in order of preference. If there is a conflict between the courts of two states, the state meeting the higher test is usually given priority.

1. The state is the child’s home state. This means that the child has resided in the state for a least six consecutive months, or was residing there for six consecutive months but is now absent because a parent is outside the state, and a parent or person acting as a parent continues to live in the state.
2. The child and at least one parent have significant connections with the state, and there is substantial evidence in the state regarding the child’s care, protection, training, and personal relationships.
3. The child is physically present in the state and either has been abandoned or is in danger of being abused or neglected if returned to the other parent.
4. No other state can meet one of the above three tests, or another state that can meet at least one of the tests has declined to make a custody award when provided an opportunity to do so.

The Act also applies in international disputes. California courts will enforce properly made custody decrees from other countries and will refuse to make a custody award when a child has been kidnapped and brought to the U.S., unless the child is in danger. In addition, a parent who lives in the U.S. and has a valid custody order can deliver a copy of the order to the U.S. State Department’s Passport Issuance Office. The State Department will either revoke any passport already issued for the child or make sure that no passport is issued for the child if one is requested by someone other than the custodial parent.

The U.S. signed an international treaty, the 1988 Hague Convention on Civil Aspects of International Child Abduction, to help parents involved in international custody battles. Countries that sign the treaty pledge to help each other when evidence of international child abductions is brought to the government.

Donor Insemination

Donor insemination (also called artificial or alternative insemination) is a procedure by which a woman is impregnated by a means other than sexual intercourse. If the semen came from her husband (called homologous artificial insemination), the father is treated the same as any other father of a child conceived during the marriage.

If a woman is married and the semen came from a man other than her husband (called artificial insemination by donor or heterologous artificial insemination), the husband is treated as if he were the natural father of the child only if he consented in writing to the insemination and the insemination was performed under the supervision of a licensed physician. (Fam. Code § 7613.) He has all the rights and responsibilities of fatherhood, including the duty to support the child. (Pen. Code § 270.)

If an unmarried woman is inseminated under the supervision of a physician, the semen donor is not considered the father of the child. Donors who provide semen to licensed physicians for use in artificial insemination of a woman other than the donor’s wife have no parental rights. (Fam. Code § 7613.) However, if a woman is inseminated without a physician’s help and the donor asserts his fatherhood, he is entitled to full parental rights and responsibilities. ( Jhordan C. v. Mary K., 179 Cal. App. 3d 386 (1986).)

Education

California law requires every child between the ages of six and 18 to attend school or continuation school full time unless the child has graduated from high school or passed a basic skills proficiency test given by the State Department of Education. (Educ. Code §§ 48200, 48400 and following.) This used to be interpreted as requiring public school attendance by every child, but that is no longer the case. Private school, tutoring, and independent study programs can all fulfill the mandatory education requirement.

Home Schooling

Parents may teach their own children at home instead of sending them to school. Home schools used to be a relatively rare phenomenon; today, however, it is estimated that over one million children are being educated at home by their parents. In California, no specific law allows or prohibits home schools.

Parents who wish to educate their children at home typically choose one of the following options:

• Tutoring. A parent can be the child’s private tutor. The parent must be qualified to teach under the state’s guidelines. State certification is also required.
• Independent study program. A parent can teach the child using the same curriculum used by the public schools in that county or using a curriculum provided by a private school. This requires consultation with the principals of local public or private schools, but no special skills are required of instructors.
• Private school. A parent can form a private school at home, following the guidelines in the Education Code. This requires following some administrative procedures, such as keeping attendance records. Teachers must be "competent," but no test or certification is required.

Parents who wish to start a home school should talk to the principal of their local public school and other parents who have taught their children at home. You can also contact the California Homeschool Network by calling 800-327-5339, or on the Web at www.cahome schoolnet.org. CHN provides resources and information about home schooling, in addition to seminars and local contacts for parents interested in educating their children at home.

Special Education

Since 1975, Congress has required public school districts to provide special education to children with certain disabilities. The federal law governing special education is known as the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 and following). IDEA requires school districts to provide a "free appropriate public education" to students who are eligible for special education services. IDEA and the regulations accompanying it (34 C.F.R. §§ 300.1 and following) require that districts work with parents to develop an individualized education program (IEP) that is tailored to meet the unique needs of each special education student. School districts must follow timelines and other requirements in preparing IEPs. The California Education Code (Educ. Code §§ 56000 and following) discusses special education—but the state standard is not more strict than the federal one, so it’s important to be familiar with the higher federal standard.

Disputes can arise between parents and school districts about whether a student is eligible for special education and, if so, what it means to provide an "appropriate" education for a given student. If you disagree with your school district regarding these or other special education issues, you may be entitled to a mediation and hearing before a state provided mediator or hearing officer. The California Department of Education website, www.cde.ca.gov, provides information on the Special Education Dispute Resolution Process.

Emancipated Minors

An emancipated minor is a person under age 18 who has achieved legal adult status by demonstrating freedom from parental control. To be emancipated, the minor must do one of the following:

• Marry. Parental consent and court approval are required, and the court will require premarital counseling. (Fam. Code §§ 302, 304.)
• Join the armed services. Parental consent or a court order is required. (Fam. Code §§ 6950, 7002.)
• Get a court emancipation order. Minors who are at least 14 years old, live apart from their parents, and lawfully support themselves financially can ask the court for a declaration of emancipation. (Fam. Code §§ 7120–7123.)

Emancipated minors have most of the same rights as adults, including the right to:

• consent to medical treatment
• enter into binding contracts
• buy and sell real estate
• sue and be sued
• make a will or trust
• decide where to live
• apply for welfare, and
• apply for a work permit.

If the law establishes an age other than 18 for certain activities (such as 16 to get a driver’s license and 21 to drink), an emancipated minor must reach that age before legally engaging in that activity.

Foster Care

Foster parents are licensed by the state to provide a temporary home for children who are abused or neglected by their parents. Foster care can consist of an emergency placement for a few days, or it can last for years and sometimes result in an adoption.

If a child is abused, neglected, or beyond parental control, the Child Protective Services of the California Department of Social Services usually tries to have the child removed from the home, but also tries to work out a plan for eventual reunification. If the parents don’t agree to such a plan, they will have a formal hearing before a juvenile court judge. If the judge orders the children removed from the home, the judge will also establish reunification conditions, such as parenting classes or drug treatment.

Children taken away from their parents are usually put into foster homes, though some are placed in juvenile centers. If the parents do not fulfill the court’s conditions for reunification within about 18 months, the judge may order permanent foster care or guardianship, which gives the parents the right to stay in touch with the children. The court may also order the natural parents’ rights terminated, freeing the child to be adopted by the foster parents or someone else.

Foster Parents

Foster homes must be licensed by state-operated or private agencies. Prospective foster parents must fill out an application and be interviewed by an employee of the agency. Single people as well as married couples can get licenses to be foster parents, and openly gay households can get licensed in some large cities.

Prospective foster parents will be visited in their homes by an agency social worker. The applicants should have a separate room for the child, and if they’re asking for placement of a young child, they must show that they have time to care for the child or have arranged for child care. The agency will also require a medical exam and fingerprints; ex-felons and sex offenders aren’t eligible for foster care licenses.

The state pays foster parents a monthly amount for support of each foster child. The amount varies among counties.

Gay and Lesbian Parents

No law prevents lesbians and gay men from becoming parents. However, some courts and government agencies may try to discourage gay men and lesbians from adopting children or having custody of their children.

Independent and Agency Adoption by Same-Sex Couples

A gay or lesbian couple is not legally barred from adopting a child simply because of their sexual orientation. Nothing in the adoption statutes prevents adoptions by same-sex parents, and many courts have allowed same-sex couples to adopt children through both public and private agencies.

The Department of Social Services used to be prohibited, by administrative rules, from recommending gay and lesbian parents for adoption. Although this restriction has been lifted, it may still be more difficult, as a practical matter, for gay and lesbian couples to adopt than for married couples. Public and private agencies, as well as individuals putting their children up for private adoption, may see gay men and lesbians as less desirable parents and refuse to place children with them.

Domestic Partner Adoption and Second Parent Adoption by Same-Sex Couples

With the enactment of AB 205 in January 2005, domestic partners gained new rights relative to children born into the partnership. Such children are now considered the legal children of both domestic partners if they are born after the partners register with the state. Both parents’ names can be shown on the birth certificate without the necessity of an adoption by the nonbiological parent. The same is true for same-sex couples who are married in California.

However, adoptions are still necessary in order to provide federal and out-of-state recognition of the parent-child relationship between the second parent and the child. And if lesbian parents conceive through donor insemination with a donor who is known to them, and don’t use a physician for the insemination, there are competing presumptions of parentage between the donor and the second parent, which must be resolved through the adoption mechanism.

If you aren’t married or registered as domestic partners, but you still want to adopt your partner’s child, you can do so under second parent adoption procedures. Second parent adoption is an independent adoption where the partner becomes a legal parent while the child’s parent retains parental rights (the same as in a stepparent or domestic partner adoption). The procedure is more expensive and complicated and takes longer, but it can be done.

Custody

When there is a dispute between two legal parents (biological or adoptive) over custody of a child, courts are required to award custody based on the best interests of the child. California courts have ruled that a parent’s sexual orientation does not, in itself, go against the child’s best interests. However, some judges do have a bias against gay and lesbian parents. If you are involved in a custody dispute where your sexual orientation is an issue, consult an attorney.

Grandparents’ Rights

Grandparents have no legal rights to see grandchildren as long as the grandchildren’s parents are still married and living. If the child’s parents divorce or die or a child is placed for adoption, however, the child’s grandparents have certain rights.

Visitation

If the parents of a minor child divorce, the grandparents may seek visitation rights in superior court. The court will grant visitation if it would be in the child’s best interest. If the parents disagree about grandparent visitation rights, the issue may be referred to mediation. (Fam. Code §§ 3100, 3103–3104, 3160, 3180, 3182, 3183.)

If a parent of a minor child dies, the grandparents may seek visitation rights in superior court. The court will grant visitation if it would be in the child’s best interest. (Fam. Code § 3102.)

Notice of Adoption

Before a court terminates parental rights to free a child for adoption, the agency seeking the termination (usually a public or private agency facilitating the adoption) must notify the parents that termination of their parental rights is being sought, give them the date and time of the hearing, and specify that they have the right to attend. If a parent’s address is unknown, the agency must give the same notification to the grandparents, adult siblings, adult aunts and uncles, and adult first cousins of the child. (Fam. Code §§ 7881, 7882.)

Guardianships

A guardian is an adult who is appointed by a court to be responsible for a minor (someone under age 18). A guardian is rarely necessary unless a child’s parents die or are unable or unfit to care for the child. Often, parents who die have named a guardian in their wills, and that person is confirmed by the court.

There are three categories of guardians:

• A guardian of the person has legal custody of the child and responsibility for the child’s well-being. The guardian provides food, shelter, and health care, and may handle relatively small financial matters, such as government benefits, on behalf of the child.
• A guardian of the estate manages the child’s money, real estate, or other assets; provides accounts to the court; and obtains court approval before handling anything but simple day-to-day financial matters. The guardian uses the child’s money to provide support, maintenance, and education for the child. (Probate Code § 2420.)
• A guardian of the person and estate takes care of both the child’s personal needs and financial assets.

To become a guardian, an adult (or a child who is at least 12 years old) must file documents with a court, notify the child’s living parents and close relatives, and attend a court hearing. A court investigator will review the file and meet with everyone involved. If no one objects, the court will probably appoint the person who is petitioning to be guardian.

A custodial parent who is terminally ill may seek court approval to appoint someone to be a joint guardian until the parent dies. After the custodial parent’s death, the court-appointed joint guardian will automatically have legal custody of the child. (Probate Code § 2105.)

A guardian serves until released by the court or until the minor reaches age 18, is adopted, marries, or achieves legal adult status by court emancipation order.

Alternatives to Guardianships

A legal guardianship isn’t necessary in every situation when an adult cares for a child. Other options include:

• Caregiver’s Authorization Affidavit. Adults who are caring for minors living with them may enroll the minors in school and make school-related medical decisions. Certain close relatives, including stepparents, grandparents, aunts, uncles, and siblings, may all make medical decisions. Caregivers must complete a statutory Caregiver’s Authorization Affidavit form. (Fam. Code §§ 6550, 6552.)
• Informal arrangements. If the child’s parents are alive but temporarily unable to take care of their child (because, for example, they are on a lengthy trip), a friend or relative can take care of the child without a guardianship. Parents should write a letter authorizing the arrangement that the caretaker can show to school officials, doctors, and so on.
• Adoption. This court-ordered measure permanently changes the adult-child relationship; the adopting adult legally becomes the parent of the child. The natural parent (if living) loses all parental rights and obligations, except in a second parent, stepparent, or domestic partner adoption.
• Foster care. Foster parents are licensed to care for children who have been removed from their biological parents’ home by a court. If foster parents want to become legal guardians, the local social services agency and county counsel handle the guardianship. (Welf. & Inst. Code § 366.26.)
• Mental health conservatorship. This proceeding is used instead of a guardianship for children who are severely disabled because of a mental disorder or chronic alcoholism. A conservator of the person, who takes care of the personal needs of the child, assures that the child is given individualized mental health treatment and services. (Welf. & Inst. Code §§ 5000–5550.) These children are often hospitalized in mental health treatment facilities.
• Conservatorship of the person. For minors who are married or divorced, a conservator of the person, rather than a guardian, must be appointed. This is merely a technical difference.
• Custodianship under the California Uniform Transfers to Minors Act. The Probate Code allows for the transfer of property to a designated custodian to be held and used for the minor’s benefit. Custodianships terminate at age 18, at which point the custodian must distribute the remaining property to the minor unless the document setting up the custodianship says that distribution is to occur later (usually when the minor turns 21, and in some instances at age 25). The custodian has a fiduciary duty to the minor with regard to the funds but is not supervised by the court. (Probate Code §§ 3900–3925.)
• Trusts. Property may be held in a trust and managed by a trustee for a minor’s benefit. The trust can specify what expenditures the trustee should make from trust funds for the minor’s benefit and when trust funds are to be directly distributed to the minor.

Housing Discrimination

California law contains several provisions designed to ensure that all persons, regardless of their age or family status, have access to housing.

Families With Children

It is illegal to discriminate against families with children in the sale, lease, or rental of real estate, or in the terms or conditions of the tenancy. The only exception is for housing units that qualify as senior housing, which can legally be reserved for senior citizens, their family members, and their health care assistants. (42 U.S.C. §§ 3607(b) and following; Civ. Code §§ 51–51.4; Marina Point Ltd. v. Wolfson, 30 Cal. 3d 721 (1982).)

As a rule of thumb, California landlords must allow two people per bedroom, plus one more. But some landlords try to avoid renting to families with children by enforcing more restrictive space-to-people ratios, ostensibly to prevent crowding. These limits are illegal unless they are related to a reasonable business need. For example, a landlord may be able to limit the number of occupants to fewer than two people per bedroom if the building’s infrastructure (plumbing or wiring) cannot support higher numbers. ( Pfaff v. U.S. Dept. of Housing and Urban Development, 88 F. 3d 739 (1996).)

Seniors

Housing that is specially designed to meet the physical and social needs of senior citizens will not violate the ban on discrimination against families with children as long as it meets both of the following tests:

• The housing complex is restricted to occupancy by at least one person per unit who is age 62 or older.
• All other residents in the complex are "qualified permanent residents" (defined below) or are health care workers who live in the same unit with the senior citizen and are paid to take care of him or her.

A "qualified permanent resident" is someone who meets three requirements:

• The resident lived with the senior prior to the senior’s death, hospitalization, or "other prolonged absence," or prior to a divorce from the senior.
• The resident was at least age 45, or was a spouse or cohabitant providing primary economic or physical support to the senior.
• The resident has or expects an ownership interest in the housing (that is, the unit is jointly owned or the other resident is named as the inheritor of the unit in the senior citizen’s will). (Civ. Code §§ 51.3 and 51.4.)

Special rules apply to Riverside County (Civ. Code §§ 51.10 and 51.11.)

Senior Citizen Housing Development

The minimum age of 62 drops to 55 for residential developments that are developed, substantially rehabilitated, or substantially renovated for senior citizens, and that meet any of the following size requirements:

• at least 70 units built prior to January 1, 1996; or at least 150 units built on or after January 1, 1996 in a densely populated metropolitan area
• at least 100 units in a smaller metropolitan area, or
• at least 35 units in a nonmetropolitan area. (Civ. Code § 51.3(c)(3).)

Requirements as to other residents in the development apply as described above.

Housing constructed before February 8, 1982 that was not specially designed or remodeled to meet the housing needs of seniors could be reserved for seniors as a "senior citizen housing development" through January 1, 2000, if it met two additional requirements:

• The housing was in an area where it was not practicable to require that senior housing be specially designed to meet the specific needs of seniors.
• The housing units were necessary to provide important housing opportunities for seniors.

Any resident who occupied this type of housing prior to January 1, 1990 may continue to live in it after the year 2000. (Civ. Code § 51.4.)

Riverside County note: Requirements for qualifying residents and housing are less stringent in Riverside County than in other parts of the state. (Civ. Code §§ 51.2(c), 51.3(j), 51.4(c), 51.10, 51.11, and 51.12.)

Juvenile Court

Juvenile court is a special branch of the court system designated to deal with problems affecting children. The goal of juvenile court is to protect and rehabilitate children. Matters handled in juvenile court include:

• Child neglect. Parents who do not or cannot provide their children with adequate food, shelter, clothing, or other necessities may be found guilty of child neglect. The children may be removed from their parents’ care and temporarily placed in a foster home. They may also be put up for adoption through a dependency action in juvenile court. (Welf. & Inst. Code § 300.) In rare cases, if a parent’s behavior is deliberate and particularly offensive, the case may be prosecuted as a misdemeanor or felony in the criminal courts as well. (Pen. Code § 273a.)
• Status offenses. Minors who won’t obey their parents but haven’t committed a crime are considered "incorrigible." Typically, they have run away from home, are chronically truant from school, have violated a city’s curfew ordinance, or are endangering their own or another’s health or morals. (Welf. & Inst. Code § 601.) Sometimes these children are allowed to remain in their homes under the supervision of a probation officer; probation conditions may include regular school attendance, drug or alcohol rehabilitation, or family counseling. Children may also be removed from the home and put into foster care or a state institution for minors. Children who are brought under the control of the juvenile court for status offenses are not considered to have committed a crime.
• Criminal offenses. Minors who are charged with crimes typically face charges in juvenile court. If the judge decides that the minor has violated a criminal law, the minor can be given probation or sent to a reform institution operated by the California Youth Authority (CYA). If the child’s case is handled completely in juvenile court, the child is not considered to have a criminal conviction. But not all juvenile offenses remain in juvenile court. If the minor is between 16 and 18 when the crime is committed, and if the judge decides after a "fitness" hearing that juvenile court proceedings aren’t appropriate (such as for particularly violent crimes or frequent offenders), the minor can be charged and sentenced as an adult. (Welf. & Inst. Code §§ 602 and 707.01.) If the minor is given a prison sentence, he or she may be confined in a CYA institution and, upon reaching the age of 16, can be sent to county jail or state prison to finish his or her sentence (CYA can also choose to keep the offender until the age of 25). Moreover, a juvenile who was only 14 years of age at the time of the offense can be charged as an adult if the minor is deemed unamenable to treatment as a juvenile and is charged with murder or certain other very serious felonies. (Welf. & Inst. Code § 707.01.)

A number of agencies participate in juvenile court cases, including the Department of Social Services and/or the Probation Department.

Parental Kidnapping and Custodial Interference

A parent can be prosecuted for kidnapping a child or otherwise interfering with the custody or visitation rights of the other parent. It doesn’t matter which parent has legal custody; if a parent conceals the child with the intent of depriving the other parent of custody or visitation rights, the parent violating the order can be prosecuted for a crime.

If there is no court order determining custody and visitation rights— such as an order issued during divorce proceedings—a parent who conceals a child from the other parent can also be prosecuted. However, the parent can defend the concealment by showing that the child was in immediate danger of physical injury or emotional harm. A parent who takes a child under these circumstances must file a request for custody within a reasonable time in the jurisdiction where the child had been living, explaining the basis for the parent’s fear that the child would be harmed. (Pen. Code § 278.7.)

A kidnapping parent can be prosecuted for a misdemeanor (imprisonment in a county jail for up to one year; a fine of $1,000; or both) or a felony (imprisonment in a state prison for up to four years; a fine of up to $10,000; or both). The penalties listed above apply regardless of who has custody or when the kidnapping occurs. (Pen. Code § 278.)

A child can be placed in protective custody by a police officer when the officer investigates a report of an alleged instance of child concealment or kidnapping by a parent and concludes that a parent may flee the jurisdiction with the child. (Pen. Code § 279.6.)

Parents' Liability for Their Children's Acts

Normally, parents aren’t financially liable for the negligent or clumsy acts of their children. Courts seem to recognize that parents cannot prevent most accidents and mishaps of childhood. However, parents may be liable if the injured person can show that the parent’s failure to supervise the child directly caused the injury.

In addition, state statutes make parents liable for:

• Willful misconduct—including defacement of property with paint or a similar substance—up to $25,000 for each incident. (Civ. Code § 1714.1.) If the child injures someone, liability is limited to medical, dental, and hospital expenses, up to $25,000. The maximum liability figure increases every two years, based on the rise of the annual average of the California Consumer Price Index. Parents’ insurance companies are not liable for conduct attributed to the parents beyond $10,000.
• Any injury inflicted with a gun that a parent let the child have or left where the child could get it, up to $30,000 for the death of or injury to one person or his property, or $60,000 for the deaths of or injuries to more than one person. (Civ. Code § 1714.3.)
• Willful misconduct that results in injury to school employees, other pupils, or volunteers; or damage to school property or to personal property belonging to school employees. Parents must pay up to $10,000 in damages and may also have to pay up to $10,000 as a reward to the person who reported the child. Parents are also liable for any school property loaned to a student but not returned. Grades, diplomas, and transcripts may be withheld until any damage is paid for. (Educ. Code § 48904.)
• Stealing merchandise from merchants, or books or materials from libraries. Parents are liable to a merchant or a library facility for damages of $50 to $500, plus the retail value of the merchandise or fair market value of the books or materials, plus costs. The total damages may not exceed $500. (Pen. Code § 490.5.)

A parent may also be financially responsible for graffiti created by his or her child. The city or county where the graffiti is located may even place a lien against the property of the child’s parent or guardian in order to recover its cleanup costs. (Gov’t. Code § 38772.)

Suing Children

People who have been harmed by the carelessness of a child usually sue the child’s parents because the child has no money. However, children can be sued for their own careless acts in a personal injury lawsuit. A child will be held liable only if the court determines that the child was capable of knowing that it was wrong at the time. Also, the court will take the child’s age into account when determining liability; what may be unreasonable carelessness for a teenager may be acceptable behavior for a preschooler.

Safety

Children are subject to several safety requirements not imposed on adults.

Bicycle Helmets for Children

All bicycle riders under the age of 18, and all bicycle passengers (including those who ride in an attached restraining seat or in a trailer towed by the bicycle), must wear an approved bicycle helmet. Your first violation will get you a warning. Subsequent violations carry a $25 fine. Parents are liable for their children’s violations. (Veh. Code § 21212.)

Life Jackets for Children in Boats

Children six years of age or younger must wear a Coast Guard-approved life jacket if they are on the deck of a boat under 26 feet long unless it’s moored, anchored, or aground. (Harb. & Nav. Code § 658.3.)

Child Restraint Requirements for Motor Vehicles

See Traffic and Vehicle Laws, Seat Belt and Child Restraint Requirements.

Students and Teachers

Public schools are allowed a good measure of control over pupils, in order to provide a safe learning environment. In addition, teachers are responsible for ensuring the safety of students during school hours. However, students have certain rights.

Student Rights

Public school students don’t leave all their constitutional rights at the schoolhouse door (although enforcing those rights might prove difficult). Some students’ rights issues that arise commonly in school include:

• Prayers and pledges. Public schools must maintain the same separation of church and state that is required of the government. Prayers cannot be recited in public schools, even if students are not required to participate. Similarly, moments of silence intended for religious contemplation are prohibited.
  A student cannot be required to salute the flag or recite the pledge of allegiance and cannot be disciplined for failing to do so.
• Dress codes. A public school can impose a dress code to prevent disruption or ensure student safety. Some schools prohibit gang colors for this reason. However, if a school prohibits clothing bearing only certain slogans, this may violate the students’ right to free speech.
• Free speech. Students’ right to freedom of speech is guaranteed by Educ. Code § 48907. Public school officials cannot censor the content of student speech—in a school paper, for example—unless the statements are obscene, libelous, or slanderous; will cause an immediate danger of inciting students to break the law or a school rule; or will otherwise substantially disrupt the school’s operations. This gives schools considerable discretion in banning controversial speech.
  In addition, school officials may regulate the time, place, and manner of student statements, as long as the regulations are reasonable, apply equally to all kinds of speech, and are not intended merely to prohibit speech. For example, a public school can prohibit students from distributing written materials during class, or limit student speeches to recess.
• Discrimination. School officials cannot discriminate on the basis of a student’s race, national origin, sex, gender identity, religion, or physical disability. However, this does not require that all students participate in the same activities. Some examples:
• • Athletic teams. Public schools and private schools receiving federal money must provide equal opportunity for both boys and girls to participate in team sports and use athletic facilities, which includes parity of coaching pay, scheduling game and practice times, and locker rooms. This does not require schools to allow competition between boys and girls. If the school does not offer a girls’ team in a noncontact sport, girls may try out for the boys’ team, but schools are free to prohibit girls from trying out for boys’ teams in contact sports.
  • Bilingual education. The U.S. Supreme Court has ruled that public school students who cannot benefit from instruction solely in English are entitled to transitional bilingual education, designed to increase their mastery of the English language. In 1998, California voters passed Proposition 227, which generally limits bilingual education to no more than one year. (Educ. Code §§ 300 and following.)

Discipline and Student Safety

School officials have a responsibility to provide safe schools. However, officials’ efforts to discipline students are subject to these rules:

• Corporal punishment is prohibited in California schools. (Educ. Code § 49001.)
• Suspension is to be used only as a last resort. A student can be suspended from school only for the following behavior:
• • threatening or causing physical injury to another, or trying to injure another
  • possessing, selling, or using a dangerous weapon
  • possessing, selling, or using alcohol or drugs, or selling anything that the student claims is alcohol or drugs
  • committing or attempting to commit robbery or extortion
  • possessing or selling drug paraphernalia
  • smoking cigarettes or possessing or using other tobacco products
  • damaging or attempting to damage school or private property
  • habitually using profanity or engaging in obscene acts
  • disrupting school activities or deliberately defying school authorities
  • knowingly receiving stolen property
  • engaging in sexual assault or hate violence, or
  • engaging in harassment, threats, or intimidation directed against another student or students so as to disrupt classwork and create an intimidating or hostile educational environment (grades 4–12 only). (Educ. Code §§ 48900–48900.4.)

Only the first four of these behaviors are grounds for suspension following a first offense, unless the principal determines that the student poses a danger to other students or property or will disrupt the educational process. In addition, suspension (and expulsion) can be imposed only for actions that are related to school activity or attendance, including events that happen at school, while the student is going to or coming from school, during recess or lunch periods, or during school sponsored activities.

• Expulsion must be recommended by a school principal for any student who commits the following acts, unless the circumstances render expulsion inappropriate:
• • causing serious physical injury to another, except in self-defense
  • possessing a firearm, knife, or explosive at school
  • selling a controlled substance, except for a first offense of selling less than an ounce of marijuana
  • robbery or extortion
  • committing or attempting to commit a sexual assault or sexual battery
  • harassing, threatening, or intimidating a pupil who is a witness in a school disciplinary proceeding
  • causing or attempting to cause damage to school or private property
  • stealing or attempting to steal school or private property, or
  • possessing or using tobacco products.

In addition, a student can be expelled for committing any of the acts for which suspension would be appropriate, if other means of correction are not feasible or have failed, or if the presence of the student poses a danger to the safety of other students. (Educ. Code §§ 48900, 48915.) A student can be "emergency expelled" if officials reasonably believe the student is a threat.

Students are entitled to a hearing within 30 school days of the date that the principal has determined that the student has committed an act warranting expulsion. (Educ. Code § 48918.)

Searches, Detentions, and Arrests

Schools cannot search or detain students freely; they must follow state rules designed to protect students’ rights. However, they do have a good deal of leeway.

• Searches. A school official who wants to search a student must have a reasonable suspicion that the search will turn up evidence that the student has engaged in illegal activity or has violated school rules. A school official may not search a student’s locker or backpack based on curiosity, rumor, or a hunch. A suspicion must be based on reasonably reliable facts, and must be directed specifically at the students involved; searching the whole student body is not allowed. ( In re William G., 40 Cal. 3d 550 (1985).) In addition, the scope of the search must be reasonably related to the object of the search and cannot be overly intrusive. Body cavity searches ("strip searches") and removing or rearranging clothing to permit visual inspection of a student’s underclothing, breasts, buttocks, or genitals are never allowed. (Educ. Code § 49050.) Metal detector searches of a random sampling of high school students may be allowable if the searches are not too intrusive, the school has a written policy for such searches, the students chosen to be searched are chosen using neutral criteria, and parents and students are periodically notified about the policy. ( In re Latasha W., 60 Cal. App. 4th 1524 (1998).) With regard to student athletes in public schools, however, unannounced urinalysis drug testing is allowed pursuant to a U.S. Supreme Court decision. ( Vernonia School District 47J v. Wayne Acton, 115 S.Ct. 2386 (1995).) The court suggested that such testing is acceptable if all student athletes on a given team are tested and none are singled out for unequal treatment.
• Detentions and arrests. School officials or security guards have the right to detain students for their own safety, to wait for police to arrive if there has been some wrongdoing, or even based on a general suspicion, if the detention is not arbitrary, capricious, or harassing. ( In re Randy G., 26 Cal. 4th 556 (2001).) School officials or security guards can also make arrests, but their power to act is limited to school personnel, students, or property, and to offenses occurring on or near school premises. (Educ. Code § 38000; 58 Opinions of the Attorney General 363, 5-9-75.)
  School officials can call in police to help them conduct searches, quell disturbances, or provide other assistance. School officials may notify police if a student has violated a law, including:
• • menacing or attacking a school employee
  • committing an assault with a deadly weapon
  • possessing a weapon at school, or
  • possessing or selling a controlled substance at school.

Police can enter school grounds at any time to perform their duties. They do not have to be invited by school officials, nor can the school prevent the police from coming on campus.

Teacher Liability

The state constitution guarantees all students the right to safe schools, and teachers have a duty to use reasonable care to protect students from reasonably foreseeable injuries, including injuries from other students. (Educ. Code § 44807, Cal. Const. Art. 1, § 28.) This doesn’t mean that a teacher must constantly supervise students or prevent all but the safest activities. Teachers must act reasonably to protect students in light of the students’ ages, how dangerous the activity is, the skill level of the students, the number of other supervisors, and so on. If a teacher fails to fulfill this duty and a student is injured as a result, the school district, and possibly the teacher, may be liable for the injury. (Educ. Code § 44807; Dailey v. Los Angeles Unified School District, 2 Cal. 3d 741 (1970); Bartell v. Palos Verdes Peninsula School District, 83 Cal. App. 3d 492 (1978); Iverson v. Muroc Unified School District, 32 Cal. App. 4th 218 (1995).)

Visitation

When one parent is awarded physical custody of a child, the other parent is usually given the right to visit the child, unless visitation would not be in the child’s best interests. (Fam. Code § 3100.) Courts want both parents to have as much contact with their children as possible and sometimes award custody to the parent more likely to allow the other frequent contact with the child.

Visitation Disputes

Mediation is mandatory whenever custody or visitation are disputed. (Fam. Code §§ 3162, 3170–3176.) (For a discussion of the mediation process, see Custody, above.)

Modifying Visitation Orders

The court can change visitation rights at any time. A parent must request the change and show that there has been a significant change in circumstances since the previous visitation order, or show that visitation rights have been frustrated by the custodial parent. A parent whose visitation rights have been violated by the other parent may also be entitled to payment from the custodial parent, to make up for time lost with his or her children. As with original visitation decisions, the question is referred to mediation before a judge rules on it.

Limited, Supervised, and Denied Visitation

Normally, a judge denies visitation only if a parent has a history of dangerous or illicit conduct, such as drug or alcohol abuse, prostitution, or domestic violence. Instead of denying visitation altogether, the court may order supervised visitation, which requires that an adult acceptable to the court be present when the dangerous parent sees the child. A court may not order unsupervised visitation to a parent convicted of abusing the child, unless the court finds no significant risk to the child. (Fam. Code § 3030.) But even if a parent is obviously unfit to take care of children over a long period, courts usually try to allow some limited contact.

Religious differences between parents are not ordinarily a sufficient reason to deny or limit visitation, unless the tension created is clearly harmful to the child.

Visitation and Child Support

A parent cannot refuse to pay child support even if the custodial parent interferes with the noncustodial parent’s visitation rights. The noncustodial parent must continue to make the payments regardless of the custodial parent’s behavior. (Fam. Code § 3556.) However, if a custodial parent deliberately conceals a child from the noncustodial parent, and then many years later reveals the child’s location and tries to collect the child support unpaid all those years, a court may agree that the noncustodial parent need not pay.