Does My Child Need a Lawyer for Juvenile Court?

On this page

A child facing a delinquency case that may lead to commitment has a right to counsel. In In re Gault, the Supreme Court concluded that, in proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and the parents must be notified of the child's right to be represented by counsel retained by them or, if they cannot afford counsel, that counsel will be appointed.

The Right to Counsel in a Delinquency Case

The rule comes from the United States Supreme Court. In In re Gault, 387 U.S. 1 (1967), the Court concluded that "the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child." A delinquency proceeding is a case claiming that the child broke a law.

This right belongs to the child in a delinquency case. It is separate from a dependency case, in which a court looks at whether a parent abused or neglected a child. Dependency is a different legal track, and this page does not cover it.

In California, Welf. & Inst. Code § 700 requires the judge, at the beginning of the hearing on a petition, to ascertain whether the minor and the parent, guardian or adult relative have been informed of the right of the minor to be represented by counsel and, if not, to advise them of the right to have counsel present and, where applicable, of the right to appointed counsel.

Gault addresses the right to counsel in proceedings to determine delinquency. California statutes add their own rules, and California's police-questioning rule, described below, is one example.

How Juvenile Court Works: Key Terms Every Parent Should Know

Juvenile court has its own vocabulary, and the words matter. Terms and procedures vary by state. The definitions below describe how juvenile cases generally work.

Petition. This is the document filed to start a case to declare a minor a ward of the court. California's Welf. & Inst. Code § 631 treats it separately from a criminal complaint.
Detention hearing. This is the hearing at which a judge or referee of the juvenile court decides whether a minor taken into custody shall be further detained (Welf. & Inst. Code § 632).
Jurisdiction hearing. This is also called an adjudication hearing. The court decides whether the facts in the petition are true.
Disposition. This is what the court orders after it finds the petition true. It is not called a sentence.
Ward of the court. This is the status a juvenile court may adjudge a minor to have when the minor is within the court's jurisdiction because of a violation of law.
Probation. This is supervision in the community, with conditions the court sets.
Diversion. This is a program that can resolve a case without a formal finding.
Transfer hearing. This proceeding decides whether a minor's case moves to adult court.
Sealing. This is the legal process of closing a juvenile record from view. Sealing does not happen automatically when a child turns 18; the situations in which it can happen are described below.

California is the worked example throughout this page. Its specific rules are California's rules, not national ones. A step-by-step walk through the stages appears in this site's guide to the juvenile court process.

What a Juvenile Defense Attorney Actually Does

A defense attorney's role differs at each stage, and in California it can start before any petition is filed, as the police-questioning rule below shows.

Police questioning. In California, Welf. & Inst. Code § 625.6 states: "Prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 17 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference. The consultation may not be waived." The rule covers every minor under 18. Under the same section, a court deciding whether the youth's statements can be used must consider the effect of a failure to comply with it. There are two exceptions. The rule does not control admissibility when an officer reasonably believed the information was needed to protect life or property from an imminent threat and limited the questions to what was reasonably needed. The rule also does not require a probation officer to follow it in the normal performance of the probation officer's duties under Section 625, 627.5 or 628.

Detention hearing. Counsel can argue for release, or for home supervision, instead of continued detention.

Jurisdiction hearing. Counsel can challenge the evidence, cross-examine witnesses and present the child's side.

Disposition. Counsel can address what the court should order. California's options are covered in this site's page on California juvenile probation.

Transfer hearing. Counsel can argue against moving the case to adult court.

Record sealing. Counsel can explain who is eligible for sealing and when, under the state's rules.

None of these steps guarantees a result.

Appointed Counsel: What the Law Says

Under In re Gault, in proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and the parents must be notified of the child's right to be represented by counsel retained by them or, if they are unable to afford counsel, that counsel will be appointed.

California's Welf. & Inst. Code § 634 addresses appointment. When it appears to the court that the minor or the minor's parent or guardian desires counsel but is unable to afford and cannot for that reason employ counsel, the court may appoint counsel. In a case in which the minor is alleged to be a person described in Section 601 or 602, the court shall appoint counsel for the minor if the minor appears at the hearing without counsel, whether or not the minor is unable to afford counsel, unless there is an intelligent waiver of the right of counsel by the minor.

Under the same section, when there is such a conflict of interest between a parent or guardian and the child that one attorney could not properly represent both, the court shall appoint counsel, in addition to counsel already employed by a parent or guardian or appointed by the court to represent the minor or parent or guardian.

When the Stakes Are Highest: Transfer to Adult Court

A transfer hearing decides whether a minor's case stays in juvenile court or moves from juvenile court to a court of criminal jurisdiction, which this page calls adult criminal court.

In California, Welf. & Inst. Code § 707 controls transfer. The prosecutor may make a motion to transfer in two situations:

The minor was 16 or older at the time of the alleged offense, and the offense is one listed in the statute or any other felony.
The individual was 14 or 15 at the time of a listed offense but was not apprehended before juvenile court jurisdiction ended.

The motion must be made before jeopardy attaches. Once the motion is made, the juvenile court orders the probation officer to prepare a report on the minor's behavioral patterns and social history. That report includes any written or oral statement offered by the victim under Section 656.2.

To order transfer, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. The court must also consider the statute's listed criteria. The evidence the court weighs includes the probation report and any other relevant evidence that the prosecutor or the minor submits. Defense counsel presents evidence and argument on those criteria.

These are California's rules, not rules that apply in every state. Transfer in felony cases is discussed further in this site's page on juvenile felony defense.

Juvenile Records: What Sealing Means and When It Can Happen

A juvenile record is not automatically sealed when a child turns 18. Sealing closes the record from view, but sealed records can still be reached in limited ways.

California's rules show how this works. These are California's rules, not rules that apply in every state.

Petition to seal (§ 781). A person may petition the court to seal the case records at any time after turning 18. A person may also petition five years or more after juvenile court jurisdiction ended. The court must order sealing if it finds two things: that the person has not been convicted of a felony or of a misdemeanor involving moral turpitude since then, and that rehabilitation has been attained to the court's satisfaction. For an offense listed in § 707(b) that was committed after the person turned 14 and resulted in wardship, a petition may be filed or considered under § 781 only if the person was committed to the former Division of Juvenile Facilities, has turned 21 and has completed probation supervision after release from the division, or was not so committed, has turned 18 and has completed any probation supervision related to that offense. That limit does not apply if the offense was dismissed or reduced to a misdemeanor by the court. A record of such an offense for which the person is required to register under Penal Code § 290.008 shall not be sealed.
Dismissal and sealing after completion (§ 786). When a person satisfactorily completes informal supervision under § 654.2, probation under § 725, or a term of probation, the court shall order the petition dismissed and the records sealed. Satisfactory completion is deemed to have occurred if the person has no new findings of wardship or conviction for a felony offense or a misdemeanor involving moral turpitude during the period of supervision or probation and has not failed to substantially comply with the reasonable orders of supervision or probation that are within the person's capacity to perform. Under § 786(d), the court shall not seal a record or dismiss a petition if the petition was sustained based on a § 707(b) offense committed when the person was 14 or older, unless the finding on that offense was dismissed or was reduced to a misdemeanor or to a lesser offense that is not listed in § 707(b). After a dismissal, the arrest and other proceedings in the case are deemed not to have occurred.
Sealing after diversion (§ 786.5). When a juvenile satisfactorily completes a diversion or supervision program that the probation officer or the prosecutor referred them to in place of a petition, the probation department must seal its records. Informal supervision under § 654 is included.
Limited access (§ 787). Agencies may still access sealed records for data reporting. A court may also allow researchers to access them. In both cases, personally identifying information may not be released.

Other consequences can follow a juvenile case, including school discipline and effects on employment. Those depend on the facts and on rules this page does not cover. Immigration consequences are governed by immigration law, which this page also does not cover.

If You'd Like to Talk Through Your Child's Case

This page explains the general rules and does not address any one child's facts.

A request for a consultation about a child's juvenile case can be made through Juvenile Justice Defense Group.

Frequently asked questions

What is the right to a lawyer in juvenile court based on?

The right comes from In re Gault, 387 U.S. 1 (1967). In that decision, the United States Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment requires, in proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, that the child and the parents be notified of the child's right to be represented by counsel retained by them or, if they are unable to afford counsel, that counsel will be appointed.

Does my child get a lawyer automatically, or do we have to ask?

In re Gault concluded that the child and the parents must be notified of the right to be represented by counsel and that counsel will be appointed if they are unable to afford counsel, in proceedings to determine delinquency which may result in commitment. In California, Welf. & Inst. Code § 700 requires the judge to ascertain whether the minor and the parent or guardian have been informed of the right to counsel and, if not, to advise them, and §§ 634 and 700 require the court to appoint counsel for a minor who appears at the hearing without counsel, whether or not the minor is unable to afford counsel, unless there is an intelligent waiver of the right of counsel by the minor.

What is the difference between a juvenile adjudication and a criminal conviction?

A juvenile adjudication is a juvenile court's finding that the petition is true. It is not called a conviction. Real consequences still follow, including a disposition, possible probation and effects outside court. Those outside effects depend on the facts and on the rules that apply.

Can my child's case be moved to adult court?

Yes, in some cases. The decision is made at a transfer hearing. In California, under Welf. & Inst. Code § 707, a transfer motion may be made when the minor was 16 or older at the time of an alleged offense listed in subdivision (b) or any other felony, or when the individual was 14 or 15 at the time of a listed offense and was not apprehended before juvenile court jurisdiction ended. To order transfer, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. This is California's rule.

What's the longest a child can stay in juvenile detention?

There is no single answer. In California, under Welf. & Inst. Code § 631(a), a minor taken into custody shall be released within 48 hours, excluding nonjudicial days, unless within that period a petition to declare the minor a ward or a criminal complaint against the minor has been filed (the rule does not apply when the minor willfully misrepresents their age as 18 or more); §§ 631(b) and 632(b) set a different rule for certain nonviolent misdemeanor arrests made without a warrant. Under § 632(a), the minor must be brought before a judge or referee for a detention hearing before the expiration of the next judicial day after a petition is filed. A court order to detain a minor under § 636(a), made on the findings that section lists, may be for a period not to exceed 15 judicial days. Custody after disposition depends on the order the court makes.

Will my child have a criminal record after a juvenile case?

A juvenile case creates a juvenile record. That record is not automatically sealed at 18. In California, sealing can happen through a petition under § 781, after completion of probation or supervision under § 786, or after diversion under § 786.5, each subject to the conditions and exceptions described above. Other consequences depend on the facts.

Does my child have the right to remain silent when questioned by police?

In In re Gault, the Supreme Court concluded that "the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults," in a proceeding to determine whether a minor is a delinquent that may result in commitment. In California, Welf. & Inst. Code § 625.6 adds a further rule. A youth 17 or younger must consult with legal counsel before a custodial interrogation and before waiving Miranda rights, and that consultation cannot be waived. The statute has limited exceptions, described in the section above on what a defense attorney does.

What is diversion in juvenile court?

Diversion is a program that can resolve a juvenile case without a formal adjudication. In California, § 786.5 covers diversion or supervision programs that probation or the prosecutor offers in place of filing a petition. Eligibility and program requirements vary by state and by the offense alleged.

The juvenile court process

Worried About Your Child's Case?

When a young person is facing charges, it helps to understand each step. Call or send us a message, and we'll listen and explain what happens next.

Request a Case Review (888) 440-5101

Reviewed by Spencer Seyb, Esq.