how an attorney can alter a sentencing

Posted on: 13 March 2017

What happens if your child gets arrested? While laws vary from state to state, there are some things that you have a right to expect -- and some things that you don't. Here's what you need to know.

The age of your child matters.

It's important to remember, especially for parents of teens who are still in high school, that your 18-year-old is legally an adult even if he or she hasn't yet graduated high school and is dependent on you. Under the law, a minor for the purposes of a criminal investigation has to be under the age of 18.

The police can question your child without your presence.

Most people are unaware of this, but the police do not need your permission to question your child about a crime -- even when your child is a suspect. Furthermore, they do not have to allow your child to call you for advice or request your presence unless they have been taken into custody.

However, your child does have similar rights to that of an adult when it comes to the right to refuse to answer any questions by the police. That's a right that all parents should make sure that their children understand -- just in case your child is ever suspected of a crime. Always remember that innocent people -- including children -- get arrested all the time, so you want to make certain that your child never accidentally says something that the police take the wrong way. 

The police have to allow your child the same basic rights as an adult when in custody.

Police also have to be extra careful when they explain a child's Miranda rights to him or her. Once a police officer gives a child his or her Miranda rights, that indicates that they are taking your child into custody. At that point, your child has the legal right to have you present for any questioning -- but only if he or she asks for you. He or she also has the right to an attorney -- but again, only if he or she asks.

The only extra protection that a child is afforded is that the police have to be particularly careful that they make it clear when a child can and cannot leave. If a child could reasonably believe that he or she is being detained and isn't free to leave, the police should give your child the Miranda warning.

Your child may be tried as an adult, depending on his or her age and crime.

In some cases, very young children cannot be held liable for a crime. Children under the age of 7 are generally considered unable to have enough mental capacity to clearly understand the nature of their actions, so they generally can't even be held in juvenile court (although there can be exceptions). 

Children between the ages of 7 and 15 are most likely going to be tried in juvenile court, which treats the crime as a need for rehabilitation, rather than punishment. Those 16-years-old and older run the risk of being tried as adults for their crimes, even if they are housed with other juveniles until they turn 18.

It's important to understand that prosecutors are increasingly seeking to try children as young as 12 as adults, which they can do with the court's permission, especially for serious crimes. For example, the two girls who tried to murder a classmate when they were 12 in order to appease the fictional character "Slenderman" are being tried in adult court and face the possibility of a lengthy prison sentence that goes well into their adult years.

It's important for parents to be educated about the way that juveniles are treated in the criminal system -- and they should educate their children early so that their children know when it is and isn't okay to answer a police officer's questions. If your child has been detained by the police, seek the help of a criminal defense attorney as soon as possible.