Caretaker Diversion is codified in Penal Code 1001.83. The law is a welcome sight for many who saw the instability and chaos created when a parent of a minor child went to prison. The law allows for rehabilitation and accountability without punishing the innocent children for acts of their parents. California is indeed progressive in implementing the law, San Francisco is the first to adopt and create a program, it is hoped Los Angeles will soon follow.
In 2020 Governor Newsom signed into law SB 394 which created a diversion program for primary caretakers of minor children in CA who have committed a crime and are facing incarceration. The law is designed to alleviate the financial stress on families when the breadwinner goes away to jail. The law also contemplates eliminating the “cycle of incarceration” and alleviating the trauma and lifelong scars endured by children when a parent is behind bars.
The law creates a program wherein a defendant can petition the Court to allow for alternatives to jail for both non violent felonies and misdemeanor charges. A motion is brought by the attorney with a declaration attesting that the accused provides substantial financial or familial support and that the minor children in household would be detrimentally harmed if the defendant goes to jail.
A motion for primary caretaker diversion pursuant to SB394 is not limited to a mother or female caregiver, if the father or male head of the household is the source of income for the family he qualifies. The defendant does not need to be the biological parent of the minor child. The pleadings must include proof the defendant qualifies by establishing the following:
1) The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.
(2) The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.
(3) The defendant has been informed of and agrees to comply with the requirements of the program.
(4) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.
(5) The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.
(6) The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
In Los Angeles the District Attorney has directed its office to comply with all statutory diversionary schemes and not oppose those cases where the interests of justice and the spirit of the law supports the imposition of diversion. This special directive specifically mentioned PC 1001.83.
The defendant cannot get Parental Diversion for crimes involving their own children, such as child abuse or child endangerment or neglect. However, the statute appears to allow for diversion in domestic violence cases where the victim is the other parent.
Under CA law if the caregiver fails to comply with the terms of the diversionary grant the District Attorney can request that the criminal charges be reinstated.
Recently Attorney Ruff was successful in obtaining Parental Diversion in Los Angeles in a felony case of hit and run resulting in death where the DA was insisting on Felony Probation with a year in the County Jail. If you or a loved one is facing jail on a felony or misdemeanor charge in Southern California call Matt to discuss your options and strategies to avoid jail and a conviction on your record.