Should parents be held responsible for property or personal damage caused by their minor children? Are there situations when they should even be held criminally liable? These questions arise in a variety of situations, ranging from schoolyard tussles that result in scrapes or broken bones, to shoplifting, to horrific acts of mass murder (Columbine). The legal answers are not clear, and analyzing any particular situation requires studying how legislators have approached the issues in your state, and how judges have applied those laws. Even then, in this area, reasonable minds can differ quite a bit.
This article gives you the framework you’ll need when thinking about parental responsibility.
Traditional, Common Law Rules
Under the common law (the legal rules we inherited from England and still apply in some form), parents were generally not held responsible, on the basis of their parenthood alone, for their children’s acts. Courts did not hold parents potentially liable to every possible victim of their minor children’s careless acts; and even when the child acted deliberately, the law required something more, such as proof that the parent knew of the child’s propensity to so act, and failed to do anything about it. Arguably, this approach focuses on protecting the parent, not the victim.
In the mid-1960s, legal scholars suggested a model approach that has been adopted in various forms by the states, which modified the common law rule and responded to increased calls for parental responsibility. Called the “Restatement,” this set of guidelines distinguished between the careless acts of a very young child and an older one, noting that parents have a better chance of controlling a youngster than a teenager. It follows that parents have a bigger duty to control the young one, and a correspondingly higher liability if they fail to do so.
But even under the Restatement and corresponding state versions, varying interpretations can produce different results. Under one approach, which is “victim protective,” parents will be held responsible when they knew of their child’s likelihood to cause harm (this is quite far from the common law). But under a “parent friendly” approach, a victim must show not only that the parent knew of the child’s propensity for violence, but there must be a direct link between that and the incident in question. Essentially, this approach brings us back to the common law.
Legislative Responses to Responsibility
All states have statutes covering civil and criminal liability for one’s children’s acts. And as a result of the 1999 Columbine massacre, criminal consequences in particular have increased.
Civil liability for children’s acts
Most state laws impose civil liability for acts done with intent—“willful or malicious” acts, or those done “knowingly and intentionally.” These do not include pure accidents or behavior by children deemed too young to form the mental state needed for such deliberation. The unspoken purpose of many such laws is a hope that they will act as a deterrent against poor parenting, essentially scaring parents into paying attention.
Some state statutes limit a victim’s recovery to property, not personal, damage. And most cap, or limit, the amount a victim can recover.
Criminal liability for children’s acts
Exposing parents to criminal liability for their children’s criminal acts can be done, but in a roundabout way. Certainly, if the parent participates or encourages the act, the parent could be charged directly, or as an accessory, or even as a co-conspirator. But such involvement is rare; more often, the parent is asleep at the switch, or actively disengaged; and sometimes, the parent is engaged, alert, but unaware or unable to control behavior. Can any of these parents be charged?
Three avenues are open to prosecutors in appropriate cases:
- Contributing to the delinquency of a minor (“CDM” laws). All states have CDM laws that not only prohibit parents from encouraging children to commit a delinquent act, but also apply to parents who actively entice minors into stealing or using drugs or alcohol, or who fail to ensure that their kids go to school. Criminal acts committed by children who are not in school or who are high on drugs or alcohol can result in a CDM charge for the parent.
- Poor parenting. A few states make parents responsible, but not directly for their kids’ acts. Instead, these laws focus on poor parenting; unlike CDM laws, they often specify which criminal acts violate the statute. For example, Louisiana's statute makes parents criminally liable if a child is convicted of a felony; is a member of a known criminal street gang; possesses or has access to an illegal firearm, weapon, or explosive; is a known user or distributor of illegal drugs; or is habitually truant. (La. Rev. Stat. Ann. § 14:92.2.)
- Firearm statutes. Many states require parents to secure their guns and ammunition, with resulting criminal penalties if they fail to do so.
California’s statute is a good example of the first approach, noted above. California makes it a misdemeanor (punishable by a fine of up to $2,500 and up to a year in jail) for parents who fail to do their parental duty, which causes or encourages their children to commit acts that would bring them before the juvenile court system. (Ca. Penal Code section 272.) Now what, you may ask, is one’s “parental duty?” The question was raised in a lawsuit, predictably, and the California Supreme Court concluded that the term was not unconstitutionally vague or overbroad. Instead, the court noted that the duty to exercise reasonable care, supervision, protection, and control over minor children could be understood by referring to “common experiences of mankind.” (Williams v. Garcetti 5 Cal. 4th 561, 573 (1993).)
Questions to Ask Your Attorney
- Is it likely that I will be charged with a crime as a result of my child’s shoplifting?
- What is the prosecutor likely to think about when making that decision?
- Can I be help civilly responsible for damage without being criminally liable too?