Emancipation is the process by which a minor becomes legally independent of his or her parents. A fully emancipated minor may choose where to live, may earn, keep and spend wages, enter into legally binding contracts, sue and be sued in court, and buy and sell real property.
Most states in the U.S. have laws that describe when and how a minor may become emancipated. Most other states recognize emancipation as a matter of common law. A few states don't allow minors to become legally emancipated, or allow for emancipation only for limited purposes or in a narrow range of circumstances.
Sometimes minors ask if they can be divorced from their parents. Although emancipation has sometimes been described as process of legal emancipation is not a divorce, as it does not sever the legal parent-child relationship.
Emancipation may occur in several ways:
- Emancipation by age: A minor is automatically emancipated upon reaching the age of majority. In most states that is the age of eighteen. A few states have an age of majority that is between the ages of nineteen and twenty-one, but in most of those states a minor who is above the age of eighteen is still afforded most of the rights of an adult.
- Emancipation by a court: In most states a minor may petition a court to be declared emancipated and, if the petition is successful, the court will issue an order that gives the minor some or all of the legal autonomy of an adult.
- Emancipation by marriage: In many states, as a matter of common law or statute, a minor becomes emancipated upon entering into a lawful marriage. In most states, emancipation by marriage is permanent; but in Ohio, if a minor is divorced before the age of eighteen the minor again becomes subject to parental authority.
- Military service: When a minor enlists in the military and is assigned to active duty military service, the minor is effectively removed from parental authority.
In states that allow minors to petition for emancipation, the normal result of a successful petition for emancipation is that the minor is no longer subject to the authority of his or her parents, and may enter into legal contracts and live independently.
In some states the result of emancipation is much more limited. For example, in Oklahoma an emancipated minor may enter into certain binding legal contracts, but the emancipation process does not otherwise remove the minor from parental control.
Filing a Petition for Emancipation
The process of filing a petition for emancipation varies by state, and it is important to research the laws of the state where the petition will be filed in order to be certain that the petition contains all of the information and legal claims required under the state's laws. The process for judicial emancipation is typically as follows:
- Preparation of a petition: The minor must prepare a petition for emancipation that meets the requirements of state law. Some states require supporting documents, such as affidavits from people who know the minor's character and will attest that the minor is a good candidate for emancipation.
- Filing the petition: The minor must file the petition for emancipation in the court for the county in which the minor is a legal resident.
- Service of the petition: The petition for emancipation must be served on all interested parties, including the minor's parents or legal guardians, with proof of service returned to the court showing where, when and how service was made.
- Scheduling of a hearing date: A hearing date may be scheduled when the emancipation petition is filed, or may be scheduled by the court after proof of service is returned to the court.
- Court hearing: A hearing is held in court, at which time the minor must present evidence in support of the petition for emancipation. Witnesses may testify in support of the minor's petition. If the petition is opposed, the party opposing the petition may present evidence to try to convince the court that emancipation should not be granted.
- Decision: The court makes a ruling and enters an order, either granting or denying emancipation.
Courts will charge a filing fee for an emancipation petition, which must be paid at the time that the petition is filed. It may be possible for a minor to qualify for a waiver of the filing fee, but any claim of indigency that is required to seek a fee waiver is likely to be viewed as evidence that the minor is not capable of financial self-support.
What is Required for Emancipation
In order to convince a court to grant a petition for emancipation, a minor must prove to a court that the minor is qualified to be emancipated. Typical requirements include:
- Age: In all states but California, a minor must be at least sixteen years old to qualify for emancipation. In California a minor must be at least fourteen years of age to file a petition for emancipation.
- Financial Independence: A minor must prove to the court that the minor is capable of self-support, without need for public assistance. A small number of states permit the minor's parents to commit to providing some financial support to the emancipated minor, through the age of majority.
- Legal Source of Income: The minor must have a legal source of income sufficient to cover the minor's basic needs, including food, shelter, transportation and health care.
- Maturity: The court must conclude that the minor is both willing and able to manage his or her own personal, financial, social and educational needs.
- Understanding: The court must find that a minor understands and accepts the consequences and responsibilities that result from emancipation.
- Parental Consent: In a few states, parental consent is required before a minor can become emancipated. In other states, the minor's parents have the opportunity to object to a petition for emancipation, and a court will consider the parent's objection before making a ruling on the petition.
When ruling on a petition for emancipation, a court may want reassurance that the minor has a plan to complete high school or to obtain an equivalency diploma. The court may also want to verify that the minor will have access to health insurance, and will be able to afford any required medical care.
Factors that Weigh Against Emancipation
When a court reviews an emancipation petition, certain information weighs against the possibility of emancipation. Factors that may prevent emancipation include:
- Mental Illness: A minor who has been diagnosed with a significant mental illness or who has displayed suicidal behavior is a poor candidate for emancipation.
- Pregnancy: A judge may question the maturity and judgment of a pregnant teenager, or a teen parent who is seeking emancipation.
- Lack of Present Capacity: In most states a minor must be capable of self-support at the time the petition for emancipation is filed, and in many states the minor must have already established an independent household or living arrangement. A dependent minor will not be emancipated based upon a promise to the court that, if emancipated, the minor will become capable of self-support.
- Desire to Live With a Boyfriend or Girlfriend: A court may be disinclined to grant emancipation to a minor who seems motivated by a desire to pursue a romantic relationship or to live with a romantic partner.
- Temporary Problems: In most states, emancipation of a minor cannot be undone. A court may thus be disinclined to grant emancipation to a minor whose needs are of a short-term nature, and who may benefit from the parent-child relationship after the problem is resolved.
Although parents are not prevented from providing support and care to an emancipated minor, if the parents are legally relieved of that duty by an order of emancipation they may no longer be required to provide that support.
A minor who is in an abusive or neglectful household, or who has been kicked out of his or her home, may want to seek emancipation. While the mistreatment of a minor may be considered by a court as a factor when determining if emancipation is in the best interest of the minor, it is not of itself a basis for emancipation. An abused or neglected minor must still satisfy all legal requirements for emancipation.
In some states, a minor who is under the authority of a child services agency may become eligible for emancipation, through legislation and special programs designed to help older teens transition to independent living arrangements.
A fully emancipated minor may obtain medical care without the consent of a parent. However, some minors may be medically emancipated without being otherwise removed from the control of their parents.
A minor who becomes pregnant may be deemed medically emancipated for purposes of the pregnancy. In some states, a minor who has been prosecuted as an adult for a criminal offense may be deemed medically emancipated for purposes of medical care received while in police custody or during a period of incarceration.
Although an emancipated minor gains many of the legal rights of adulthood, an order of emancipation does not excuse the minor from age-related restrictions that apply to all minors. For example,
- An emancipated minor remains subject to state laws for the issuance of drivers' licenses and occupational licenses.
- An emancipated minor is not excused from age restrictions on the possession of alcohol and tobacco.
- Emancipation does not excuse a minor from laws that require school attendance or restrict hours of employment.
- Emancipation does not excuse a minor from age restrictions on voting or eligibility for elected office.
Emancipation allows a minor to enter into legally binding contracts, but an emancipated minor may find that some individuals and businesses remain unwilling to enter into contracts with them without the participation of another person who is above the age of majority.
Some states may require parental approval or court approval for marriage, even after a minor is otherwise emancipated from parental authority.
Although minors tend to focus on the independence that results from emancipation, that independence carries some risks and potential burdens. For example, an emancipated minor may be sued, and held liable in court in the same manner as an adult. An emancipated minor who encounters unexpected expenses may not compel his or her parents to help cover those expenses.
A minor who wants to live independently may not qualify for emancipation, but emancipation may not be required. Many minors live independently with the permission of their parents, even though they have not been legally emancipated. For example,
- Students under the age of majority frequently live outside of the home to attend college.
- Some minors live with relatives other than their parents, or with other responsible adults.
In most states, minors are automatically emancipated at the age of 18. In the few states that set a higher age of majority, minors may nonetheless gain most of the rights of adulthood at age 18.