KEY LEGAL TERMS & GENERAL GLOSSARY
The following glossary words will help explain some state and federal programs in relation to injured children. It will also cover some key legal lingo that will help you make sense of the different words that you will hear from your California child injury lawyer, or the claims adjuster regarding your child’s injury:
Age of Majority:
This expression is used to mean when a child reaches an age where he or she is considered an adult and no longer a minor. In California, this is eighteen years old.
California Family Code:
Different laws set in place by the California Legislature to govern what happens in family legal issues and process. Since this book focuses on injured children in California, much of the legal process is annunciated in this text of California laws.
California Juvenile Court System:
The California court that supervises and administers minor children accused of a crime or juvenile offense; also known as a “delinquent act.” The goal of this system is to rehabilitate the juvenile offender instead of punish.
California Probate Code:
Different laws set in place by the California Legislature to govern what happens when the court supervises the legal transfer of property when someone dies to his or her beneficiaries; much of these laws have influenced the legal procedures when it comes to an injured child settlement in California.
California’s Safely Surrendered Baby Law:
The Safely Surrendered Baby Law (SSB) was implemented on January 1, 2001, in response to the increasing number of abandoned baby deaths in California, as reported by media accounts. The law is intended to spare the life of an infant by encouraging parents or persons with lawful custody to safely surrender an infant at a "safe surrender site" within 72 hours of the child's birth rather than abandoning them in an unsafe location. In October 2005, Governor Schwarzenegger signed legislation extending the SSB Law permanently, effective January 1, 2006.
California Statute of Limitations for Minor Children:
California law places a time limit on pursuing a legal remedy in relation to wrongful conduct or negligent conduct. With injury claims, this means a settlement must be agreed to, or a lawsuit must be filed within the limitations period or a person forever loses his or her legal rights to any monetary recovery. Generally, it is two years from the date of an accident when an adult person is injured by a private party; however, with minor children, the statute is tolled, or delayed, until the child’s eighteenth birthday. This time extension helps to protect the child’s legal interest in any potential claim against another party for injuries.
California Welfare and Institutions Code:
Statutory law in place in California whose purpose is to establish programs and services that are designed to provide protection, support or care of children, through the juvenile court, probation department or other public agencies designated to perform duties prescribed by this code to insure the that rights or physical, mental or moral welfare of children are not violated or threatened by their present circumstances or environment.
Any physical injury inflicted by other than accidental means on a child by another person. It also includes other abuse such as emotional abuse, sexual abuse, neglect or abuse in “out-of-home” care. This definition does not include as actions between minors, reasonable and necessary force by a peace officer under certain circumstances, nor spanking that is reasonable and age appropriate which does not expose the child to risk of any serious injury.
Child Abuse Prevention and Treatment Act (CAPTA):
CAPTA was originally enacted in 1974 and provides Federal funding to States in support of prevention, assessment, investigation, prosecution, and treatment activities, and also provides grants to public agencies and nonprofit organizations for demonstration programs and projects to help prevent and inform the public on child abuse. Additionally, CAPTA identifies the Federal role in supporting research, evaluation, technical assistance, and data collection activities; establishes the Office on Child Abuse and Neglect; and mandates Child Welfare Information Gateway. CAPTA also sets forth a minimum definition of child abuse and neglect.
Child Protective Services (CPS) in California:
This is a major system of intervention of neglect and child abuse in California; services are provided to children and their families who experience abuse or neglect. The goal of the CPS is to keep the child in his or her home as long as it is safe for the child, and when the child becomes at risk for any abuse or neglect, to quickly develop a plan for alternative care.
Common Law Doctrine:
This is also known as “case law,” or “precedent,” is law developed by judges through decisions of courts and similar tribunals over a period of time rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, or what is collectively known as “Common Law Doctrine.”
Legal obligation arising out of wrongs against a government or society in general and it is punished or prosecuted through the criminal court system (California Superior Court for adults, and the juvenile division for juvenile offenders).
Legal obligations arising from private wrongs or a breach of contract that is not a a criminal act or public wrong; in California, it is punished or administered through the civil court system (California Superior Court).
A parent that has the legal right to the physical custody of its child, either under the provisions of a state law granting custody, or under the provisions of a court order granting custody of the child to one of its parents in preference over the other parent.
This is the sworn testimony of a witness taken before trial held out of court with no judge present. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded by a court reporter, and may also be video taped in California. When a person is unavailable to testify at trial, the deposition of that person may be used, or sections of the deposition may be introduced to the jury during trial. The main part of the deposition is in the pre-trial discovery (fact-finding) process, and special rules can apply to injured children (see Chapter 4 for more details on special rules and protections for injured children during depositions).
Part of the pre-trial litigation process during which ea ch party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts surrounding an issue related to a legal action. Generally discovery devices include depositions, interrogatories, requests for admissions, document production requests and requests for inspection (collectively called “Discovery”). Discovery helps a party find out the other side's version of the facts, what witnesses know, and other evidence prior to actual trial.
Emancipation of Minor Child in California:
Legal emancipation is a legal way for children to become legal adults for certain items before they reach the age of eighteen. Once a child is emancipated, his or her parents do not have custody or control of him or her anymore. Generally speaking, a child needs to be fourteen years of age or older, and her or she may do the following for emancipation to trigger: 1) get married (with permission of his or her parents and the court); 2) join the armed forces (with permission of his or her parents and the armed forces); and, 3) a declaration from a judge which shows that the child has a legal way to make money, manage his money, and why it would be good for the child, etc. See Chapter 5 for more details on emancipation.
Placing a child in the temporary care of a family other than its own as the result of problems or challenges that are taking place within the birth family, or while critical elements of an adoption are being completed.
Guardianship is a court proceeding in which a judge gives someone who is not the parent: custody of a child, or the power to manage the child's property (called "estate"), or both. However, if Child Protective Services (CPS) is involved in your case, you probably have to go to the juvenile court to find out what you can do. For bodily injury settlements, a Guardian ad Litem is usually appointed by the court (see infra for the definition of Guardian ad Litem).
Guardian ad Litem:
The Guardian ad Litem is simply an adult person, usually a parent, or close family member, who is confirmed by the court, to act in the best interest of the injured child in regards to the injured child’s settlement for bodily injuries. Since children cannot engage into contracts, they have to be represented by a Guardian Ad Litem when it comes to their bodily injury settlement, and the California courts do this by confirming this person so it becomes a court order. Sometimes you will find this term abbreviated as “GAL.” See Chapter 5 of this book for even more details.
Any person, under the age of eighteen years, who commits a crime.
Keeping Children and Families Safe Act of 2003:
This is federal legislation that reauthorizes the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA, which helps states improve practices in preventing and treating child abuse and neglect, includes a basic state grant program for improving the child protective services (CPS) system infrastructure, a discretionary grant program for research, program demonstrations, training, and other innovative activities, and a grant program focused on community-based prevention efforts. The bill also reauthorizes the Adoption Opportunities Act, the Abandoned Infants Assistance Act and the Family Violence Prevention and Services Act.
This simply means a person has an ability or legal right to be in court in the first place in order to bring a cause of action in court. This is relevant for Guardians to be appointed by the court in California for injured children and their court approved injury settlements.
This simply means a person has a real interest with respect to the claim or issue for a court to grant a remedy. This is relevant for Guardians to be appointed by the court in California for injured children and their court approved injury settlements.
California law generally refers to children as “minors;” a minor is any child under the age of eighteen, and not “emancipated,” i.e. legally living on his or her own.
Minor’s Blocked Bank Account:
This is the financial institution (FDIC insured bank) where the injured minor child’s settlement funds will be deposited until the minor child reaches the “age of majority” which is eighteen years old in California.
Minors’ Compromise and Release Petition:
This is the legal paper work your child’s injury lawyer will file with the California courts to get a judge’s approval on your minor child’s injury settlement.
Minors’ Compromise and Release Hearing:
This is a court hearing, mandated under California law, wherein a judge will approve an injured child’s settlement offer (usually from the insurance company). The judge also approves the way the injured child shall receive the settlement funds, and the guardian to monitor the funds for the injured child. The approval is completed as a court order. It is also known and referred to as a “Minors Comp” hearing.
National Center on Shaken Baby Syndrome (NCSBS):
They have a mission to prevent shaken baby syndrome through the development of networks, programs, implementation of education, public policy and research; to establish support for families and train them, and caregivers, on the importance of not shaking infants, or small children. You can find more information on their website www.dontshake.org.
A cause of action where legal liability is imposed on the parents of a minor child whose actions has caused someone else damages. Please see Chapter 3 for more details on this theory of liability.
This simply means parents can be held legally liable (at fault) for the intentional and negligent actions of their minor children. See Chapter 3 for more details on this.
A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition). It is relevant to injured children as it can be requested to protect the injured child during the litigation process. Please see Chapter 4 for more details on the use of protective order with injured children in litigation.
Single Premium Deferred Annuity (SPDA):
A contract sold by an insurance company designed to provide payments to the holder of the contract at specified intervals, or specified times. This can be considered an investment vehicle and can be used to hold settlement funds for an injured minor child in California. See Chapter 7 for more specifics of how attorneys can counsel their minor child clients/parents on the benefits of using this investment vehicle for their settlement funds.
Special Needs Trust:
This is a special type of trust that can hold assets for and distribute payments for your injured child’s settlement who has some special need (handicap or the like), while at the same time preventing him or her from being disqualified from receiving government benefits like Supplemental Security Income ('SSI') or Medi-Cal. Although your child is named as the beneficiary of the trust, the assets are not counted as his or her 'available resources' because the assets are not within his or her immediate “control.”
Strict Liability Law:
The body of law that makes a person legally responsible for the damage and loss caused by his or her acts or omissions regardless of culpability (which means regardless of notice or finding fault). This is imposed on parents in certain circumstances in regards to the acts of their minor children. Please see Chapter 3 for more details on this type of liability.
Uniform Transfers to Minors Act:
This is federal legislation which provides the vehicle under which gifts can be made to a minor child without the requirement of a court appointed guardian for the minor child, and which satisfies the IRS requirements for qualifying of a gift of up to $13,000.00 for exclusion from the g