A parent is not only legally responsible for the support and well being of his or her children, but is legally responsible to third parties for various torts the child may have committed. See our article on Torts. The parent also has control over the conduct and actions of the child and such control is normally enforced by the Courts and the police if necessary. Only upon reaching the age of eighteen years does the child become an adult and no longer subject to parental control.
However, this control and responsibility may be cut short by the legal process known as emancipation. Emancipation refers to a legal process of freeing a minor from parental control. The term may also refer to freeing the earnings/income of a child from the control of a parent. People under the age of eighteen are referred to as minors. Minors are under the control of their parents or legal guardians until they attain the age of majority. However, in special circumstances, a minor can be freed from control by their guardian before attaining majority.
Normally, the circumstances in which a minor becomes emancipated are enlisting in the military, and marriage. In order to obtain emancipation, the minor should file a petition with the family court in the applicable jurisdiction, formally requesting emancipation and citing reasons why it is in their best interest to be emancipated. Emancipation laws vary from state to state. Once emancipation is granted, the parent is no longer legally responsible for the acts of the child. Criteria for determining if emancipation is in the minor’s best interest vary among the states. Some of the criteria are the minor has financial independence, exhibits sufficient maturity, lives apart from parents, has decision making capacity or attends school or has already received a diploma or achieved some equivalent proof of both maturity and ability to fend for him or herself.
California Emancipation Statute:
The California statute is reproduced in relevant part below and follows the usual criteria found in most states in the United States. The final portion of this article shall discuss ramifications and practical application of the Statute.
First, the Statute which is not difficult to comprehend:
This part may be cited as the Emancipation of Minors Law. Div. 11, Part 6, Chap. 1, §7000
It is the purpose of this part to provide a clear statement defining emancipation and its consequences and to permit an emancipated minor to obtain a court declaration of the minor’s status. This part is not intended to affect the status of minors who may become emancipated under the decisional case law that was in effect before the enactment of Chapter 1059 of the Statutes of 1978. Div. 11, Part 6, Chap. 1, §7001
A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied:
(a) The person has entered into a valid marriage, whether or not the marriage has been dissolved.
(b) The person is on active duty with the armed forces of the United States.
(c) The person has received a declaration of emancipation pursuant to Section 7122.
Div. 11, Part 6, Chap. 1, §7002
CHAPTER 2. EFFECT OF EMANCIPATION
An emancipated minor shall be considered as being an adult for the following purposes:
(a) The minor’s right to support by the minor’s parents.
(b) The right of the minor’s parents to the minor’s earnings and to control the minor.
(c) The application of Sections 300 and 601 of the Welfare and Institutions Code.
(d) Ending all vicarious or imputed liability of the minor’s parents or guardian for the minor’s torts. Nothing in this section affects any liability of a parent, guardian, spouse, or employer imposed by the Vehicle Code, or any vicarious liability that arises from an agency relationship.
(e) The minor’s capacity to do any of the following:
(1) Consent to medical, dental, or psychiatric care, without parental consent, knowledge, or liability.
(2) Enter into a binding contract or give a delegation of power.
(3) Buy, sell, lease, encumber, exchange, or transfer an interest in real or personal property, including, but not limited to, shares of stock in a domestic or foreign corporation or a membership in a nonprofit corporation.
(4) Sue or be sued in the minor’s own name.
(5) Compromise, settle, arbitrate, or otherwise adjust a claim, action, or proceeding by or against the minor.
(6) Make or revoke a will.
(7) Make a gift, outright or in trust.
(8) Convey or release contingent or expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy, and consent to a transfer, encumbrance, or gift of marital property.
(9) Exercise or release the minor’s powers as donee of a power of appointment unless the creating instrument otherwise provides.
(10) Create for the minor’s own benefit or for the benefit of others a revocable or irrevocable trust.
(11) Revoke a revocable trust.
(12) Elect to take under or against a will.
(13) Renounce or disclaim any interest acquired by testate or intestate succession or by inter vivos transfer, including exercise of the right to surrender the right to revoke a revocable trust.
(14) Make an election referred to in Section 13502 of, or an election and agreement referred to in Section 13503 of, the Probate Code.
(15) Establish the minor’s own residence.
(16) Apply for a work permit pursuant to Section 49110 of the Education Code without the request of the minor’s parents.
(17) Enroll in a school or college.
Div. 11, Part 6, Chap. 2, §7050
An insurance contract entered into by an emancipated minor has the same effect as if it were entered into by an adult and, with respect to that contract, the minor has the same rights, duties, and liabilities as an adult.
Div. 11, Part 6, Chap. 2, §7051
With respect to shares of stock in a domestic or foreign corporation held by an emancipated minor, a membership in a nonprofit corporation held by an emancipated minor, or other property held by an emancipated minor, the minor may do all of the following:
(a) Vote in person, and give proxies to exercise any voting rights, with respect to the shares, membership, or property.
(b) Waive notice of any meeting or give consent to the holding of any meeting.
(c) Authorize, ratify, approve, or confirm any action that could be taken by shareholders, members, or property owners.
Div. 11, Part 6, Chap. 2, §7052
CHAPTER 3. COURT DECLARATION OF EMANCIPATION
Article 1. General Provisions
It is the intent of the Legislature that proceedings under this part be as simple and inexpensive as possible. To that end, the Judicial Council is requested to prepare and distribute to the clerks of the superior courts appropriate forms for the proceedings that are suitable for use by minors acting as their own counsel.
Div. 11, Part 6, Chap. 3, Art. 1, §7110
The issuance of a declaration of emancipation does not entitle the minor to any benefits under Division 9 (commencing with Section 10000) of the Welfare and Institutions Code which would not otherwise accrue to an emancipated minor.
Div. 11, Part 6, Chap. 3, Art. 1, §7111
Article 2. Procedure for Declaration
(a) A minor may petition the superior court of the county in which the minor resides or is temporarily domiciled for a declaration of emancipation. (b) The petition shall set forth with specificity all of the following facts:
(1) The minor is at least 14 years of age.
(2) The minor willingly lives separate and apart from the minor’s parents or guardian with the consent or acquiescence of the minor’s parents or guardian.
(3) The minor is managing his or her own financial affairs. As evidence of this, the minor shall complete and attach a declaration of income and expenses as provided in Section 1285.50 of the California Rules of Court.
(4) The source of the minor’s income is not derived from any activity declared to be a crime by the laws of this state or the laws of the United States.
Div. 11, Part 6, Chap. 3, Art. 2, §7120
(a) Before the petition for a declaration of emancipation is heard, notice the court determines is reasonable shall be given to the minor’s parents, guardian, or other person entitled to the custody of the minor, or proof shall be made to the court that their addresses are unknown or that for other reasons the notice cannot be given.
(b) The clerk of the court shall also notify the district attorney of the county where the matter is to be heard of the proceeding. If the minor is a ward or dependent child of the court, notice shall be given to the probation department.
(c) The notice shall include a form whereby the minor’s parents, guardian, or other person entitled to the custody of the minor may give their written consent to the petitioner’s emancipation. The notice shall include a warning that a court may void or rescind the declaration of emancipation and the parents may become liable for support and medical insurance coverage pursuant to Chapter 2 (commencing with Section 4000) of Part 2 of Division 9 of this code and Sections 11350, 11350.1, 11475.1, and 11490 of the Welfare and Institutions Code.
Div. 11, Part 6, Chap. 3, Art. 2, §7121
(a) The court shall sustain the petition if it finds that the minor is a person described by Section 7120 and that emancipation would not be contrary to the minor’s best interest.
(b) If the petition is sustained, the court shall forthwith issue a declaration of emancipation, which shall be filed by the county clerk.
(c) A declaration is conclusive evidence that the minor is emancipated.
Div. 11, Part 6, Chap. 3, Art. 2, §7122
(a) If the petition is denied, the minor has a right to file a petition for a writ of mandate.
(b) If the petition is sustained, the parents or guardian have a right to file a petition for a writ of mandate if they have appeared in the proceeding and opposed the granting of the petition.
Div. 11, Part 6, Chap. 3, Art. 2, §7123
Article 3. Voiding or Rescinding Declaration
(a) A declaration of emancipation obtained by fraud or by the withholding of material information is voidable.
(b) A declaration of emancipation of a minor who is indigent and has no means of support is subject to rescission.
Div. 11, Part 6, Chap. 3, Art. 3, §7130
A petition to void a declaration of emancipation on the ground that the declaration was obtained by fraud or by the withholding of material information may be filed by any person or by any public or private agency. The petition shall be filed in the court that made the declaration.
Div. 11, Part 6, Chap. 3, Art. 3, §7131
(a) A petition to rescind a declaration of emancipation on the ground that the minor is indigent and has no means of support may be filed by the minor declared emancipated, by the minor’s conservator, or by the district attorney of the county in which the minor resides. The petition shall be filed in the county in which the minor or the conservator resides.
(b) The minor may be considered indigent if the minor’s only source of income is from public assistance benefits. The court shall consider the impact of the rescission of the declaration of emancipation on the minor and shall find the rescission of the declaration of emancipation will not be contrary to the best interest of the minor before granting the order to rescind.
Div. 11, Part 6, Chap. 3, Art. 3, §7132
(a) Before a petition under this article is heard, notice the court determines is reasonable shall be given to the minor’s parents or guardian, or proof shall be made to the court that their addresses are unknown or that for other reasons the notice cannot be given.
(b) The notice to parents shall state that if the declaration of emancipation is voided or rescinded, the parents may be liable to provide support and medical insurance coverage for the child pursuant to Chapter 2 (commencing with Section 4000) of Part 2 of Division 9 of this code and Sections 11350, 11350.1, 11475.1, and 11490 of the Welfare and Institutions Code.
(c) No liability accrues to a parent or guardian not given actual notice, as a result of voiding or rescinding the declaration of emancipation, until that parent or guardian is given actual notice.
Div. 11, Part 6, Chap. 3, Art. 3, §7133
If the petition is sustained, the court shall forthwith issue an order voiding or rescinding the declaration of emancipation, which shall be filed by the county clerk.
Div. 11, Part 6, Chap. 3, Art. 3, §7134
Voiding or rescission of the declaration of emancipation does not alter any contractual obligation or right or any property right or interest that arose during the period that the declaration was in effect.
Div. 11, Part 6, Chap. 3, Art. 3, §7135
Article 4. Identification Cards and Information
On application of a minor declared emancipated under this chapter, the Department of Motor Vehicles shall enter identifying information in its law enforcement computer network, and the fact of emancipation shall be stated on the department’s identification card issued to the emancipated minor.
Div. 11, Part 6, Chap. 3, Art. 4, §7140
A person who, in good faith, has examined a minor’s identification card and relies on a minor’s representation that the minor is emancipated, has the same rights and obligations as if the minor were in fact emancipated at the time of the representation.
Div. 11, Part 6, Chap. 3, Art. 4, §7141
No public entity or employee is liable for any loss or injury resulting directly or indirectly from false or inaccurate information contained in the Department of Motor Vehicles records system or identification cards as provided in this part.
Div. 11, Part 6, Chap. 3, Art 4, §7142
If a declaration of emancipation is voided or rescinded, notice shall be sent immediately to the Department of Motor Vehicles which shall remove the information relating to emancipation in its law enforcement computer network. Any identification card issued stating emancipation shall be invalidated.
Div. 11, Part 6, Chap. 3, Art. 4, §7143
Practical Considerations:
Note that the emancipation is automatic and does not need court process in the event of marriage or entry into the armed forces. Note, however, that parental consent is often required for those two actions.
Note that even if the minor establishes that he or she qualifies on the economic criteria set by the Court set at Article 2 above, the Court may still refuse emancipation in the event the Court concludes that the emancipation would be “contrary to the minor’s interest.” That discretion with the Court is all important in that it requires the Court to inquire as to the overall condition of the minor and may allow investigation well beyond the purely economic grounds set out in Article 2.
It is also noteworthy that it is not the welfare of the parents or guardians that is considered by the Court in exercising that discretion. As with so much involving children in the State, it is the welfare of the child that is paramount and which the Court is to consider before granting the petition.
It is often shocking to people to realize that fourteen is the lowest age allowing emancipation and one hears wonder that a child of fifteen could be considered a full adult - for, make no mistake about it, once the declaration of emancipation is provided by the Court, the child is no longer a child from the legal point of view, but a fully fledged adult with all the rights and obligations an adult must face.
Parents, concerned about their exposure for the torts of their child and feeling they have no control, often consider whether emancipation would be appropriate but still face the fact that the Court will be utilizing criteria that will not consider their needs as vital but, instead, the child’s needs. Certainly without proof of ability of the child to care for him or herself, emancipation is unlikely to occur.
Emancipation is an extreme remedy and often only granted to children in their late teens, perhaps a year or two before eighteen. Most parents would rather maintain at least a semblance of control and utilize liability insurance to provide for protection in the event their child is acting in an inappropriate manner. Nevertheless, it is a process allowed at law and may be appropriate, especially if the parents and the child agree that it would be for the best and the child has means to support him or herself.