Emancipation in California is done through a comprehensive step-by-step process. In this article, we will describe the ways a minor can ask the courts to become legally emancipated and the ways that automatically grant a declaration of emancipation.
What is the Emancipation of a Minor?
Emancipation of a minor (CA Fam Code section 7002) refers to the legal process of releasing a minor child from parental control, the legal way of making them a legal adult before they reach the “age of majority.” Let’s unpack what this means practically for both parents and their teenage children.
Under California law, a minor is a person under eighteen years of age. Eighteen is the age of majority, at which one becomes a legal adult outside the custody and control of a parent or guardian, in most of the world, though that age ranges from 18-21. Having a minor child gives rise to various rights and obligations on the part of a parent:
The basic rights of parents regarding minor children are:
- Physical custody, including domicile, regular contact, and visitation.
- Legal custody means the right to make important decisions regarding the child’s health, safety, and welfare. education, medical care, religious education, and other issues.
- The minor’s earnings. Yes, as odd as it may seem, in the above vignette Mom Jean had every right to access and spend daughter Gloria’s money while Gloria is a minor living with her. Mom may even demand that she be paid her daughter’s earnings directly (Family Code section 7500, 7503) though if the money were earned under a court-approved contract in the entertainment industry, the employer would have to place fifteen percent of gross earnings in a blocked trust account owned by the child alone. (CA Fam Code section 6750)
- Parents have the right to pass property to their children by inheritance and to inherit from children.
Legal Disabilities of Minors
Minors suffer many legal disabilities. They may not enter into binding contracts, except as to necessities of life; such agreements may be disaffirmed by minors (Family Code section 6710), with the result that most others will not contract legally in the first place. This makes it impossible to buy a car, open a bank account, own money, develop credit, or rent a home.
But the problem goes beyond the disaffirmance issue. California Family Code section 6701 provides:
- (a) Give a delegation of power.
- (b) Make a contract relating to real property or any interest therein.
- (c) Make a contract relating to any personal property, not in the immediate possession or control of the minor.”
Minors also may not choose where to live, where to go to school, what medical treatment to undergo, or what religion to learn. Those decisions belong to parents’ permission and to the parents’ consent with one or both parents having a legal way to make that custody.
Obligations of Parents
In return for the high degree of control, parents have, they have serious legal burdens as well. They must financially support minors, providing education, medical care, food, shelter, and supervision. Parents must protect minor children from physical, mental, and emotional harm and provide for all of their basic needs. Parents are also financially and legally responsible for the willful acts of their minor children.
The failure of parents to meet these obligations can lead to temporary or permanent loss of a parent’s rights, and foster care or adoption of the child. While termination of parental rights in juvenile court is the result of a parental failure to live up to legal duties (chiefly arising from abuse and neglect under the jurisdiction of a judge of the juvenile court), emancipation is a Family Court matter focused on granting the rights of an adult to the minor, removing a child’s legal disabilities, and relieving the parents of their obligations.
Effects of Emancipation
After emancipation, parents have no legal right to custody or visitation, or to impose their will regarding finances, domicile, real or personal property, education, or religion. Conversely, they have no obligation to support, protect, educate, or meet the needs of the emancipated minor or minors. Nor will they have any liability for the child’s actions toward others. Minors who have been emancipated will have more rights, but also more responsibility.
A minor considering emancipation must be certain that he or she can handle not only the freedom but the responsibility, without whatever cushion his or her parents used to provide. If you realize you aren’t ready, it may be a good idea to explore family mediation or family therapy as an alternative.
Grounds for Emancipation
California Family Code section provides;
A person under the age of 18 years is an emancipated minor if any of the following conditions are satisfied:
- (a) The person has entered into a valid marriage or has established a valid domestic partnership, regardless of whether the marriage or the domestic partnership 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 under Section 7122.”
As we shall see, one cannot get a declaration of emancipation by accident or against one’s will. Also, parental consent (or at least apathy) is necessary to get a full declaration of emancipation.
Emancipation by Marriage
Under the Family Code, section 7002, a minor’s marriage to a responsible adult automatically emancipates him or her. But Family Code sections 302-304 impose prerequisites on such a union:
- Parental consent;
- If no competent parent exists, court permission.
- An interview of each party and each parent or legal guardian by Family Court Services
- A written report assessing potential force, threat, persuasion, fraud, coercion, or duress by either of the parties or their family members relating to the intended marriage.
- The recommendations of Family Court Services for either granting or denying the parties permission to marry.
- An in-camera interview of each of the parties and the parents or legal guardian by the court.
- A court order regarding the application,
- A juvenile marriage license, if appropriate, was issued not less than thirty days after the court order.
Throughout the court process, there are many opportunities to evaluate the consent of all parties involved, and whether they understand the consequences of marriage, family counseling, and emancipation.
Emancipation by Joining the Military
Going on active duty with the Army, Navy, Air Force, Marines, Coast Guard or Space Force is an automatic declaration of emancipation under section 7002 of the Family Code. But by Federal statute, to enlist, minors must be 17 and have parental consent. If consent is not obtained, the minor’s parents will have a short period to complain (90 days), but as a practical matter, if a minor wants out of the service and requirements have not been met, it will usually be allowed on some basis, though there is likely to be tremendous peer pressure to remain.
About 17000 minors join the military each year.
Emancipation by Declaration
The third method of declaration of emancipation is the filing of Court form EM-100, which can be obtained from the court clerk or online and is titled a Petition for Declaration of Emancipation. It is a simple form, mostly consisting of boxes to check. It lays out the requirements for a full court hearing and declaration of emancipation:
- The minor must be 14 or older
- The minor must be willingly living apart from his or her parents, with their consent (no runaways).
- The minor must be handling his or her financial affairs, and have a source of legal income. This may be from a job, gifts from parents or others, or another source like an annuity. Gifts are not likely to sway the Court toward emancipation, because they could stop at any time.
- Income and expenses must be shown on form EM-115, available from the clerk or online.
- Income must be sufficient to support the minor. The need for public assistance is a ground for the revocation of emancipation under Family Code 7130, as is having obtained the Declaration by fraud.
- Addresses of parents or a legal guardian must be provided; they are entitled to notice of the Petition, as is any juvenile probation officer.
- If addresses are unknown, Petitioner must be ready to show a diligent effort to obtain them.
- If possible, the Petitioner should obtain and attach written consent to emancipation from the parents or legal guardian.
- As required by the Education Code, Petitioner must continue to go to school, grades
- The Court must find that emancipation is in the best interests of the minor. (Family Code section 7122). The best interests of a parent, even one who may need the minor’s income to survive, are irrelevant.
- The Petitioner must continue to go to school as required by the Education Code, graduate, or obtain a GED.
- The Petitioner will need a work permit as required by the Education Code.
- The Petitioner must pay a court filing fee or obtain a waiver. But a waiver may undermine the argument that he or she will have enough money to live separately and pay bills
- Though there must have been some cooperation from the parents for Petitioners to be living apart with control over his or her finances, parents may still object to the petition and seek a writ if they have appeared in the action and put their opposition on the record.
Practical Considerations in Representing Minors
Counsel may be asked to represent children in emancipation proceedings, though the forms and legal issues are straightforward. Most attorneys who represent minors probably do so pro bono, or through legal aid some public or private agencies, or other organizations, since a minor may disaffirm the contract with his or her attorney, by law rendering it unenforceable (Family Code section 6710).
There is no need for a guardian ad litem in emancipation proceedings or a right to appointed counsel. The American Bar Association has a list of children’s law centers online at https://www.americanbar.org/groups/litigation/committees/childrens-rights/directory/law-centers/
Final Thoughts
Assuming you are representing a minor, remember that what is routine for you may be intimidating and confusing for them. Explain what will happen and what is needed without legal jargon. But don’t patronize your minor client. Remember, they feel ready to take on the role of an adult. Counsel should assure the minor knows what that means and how to achieve it. If you or someone you know is interested in seeking a declaration of emancipation, it’s best to look for an experienced family law attorney.
To learn more about emancipation in California, conflict resolution, and other alternative dispute resolutions, contact ADR Times!
- Understanding The Integrative Negotiation Style - April 18, 2024
- What Does Per Diem Mean? A Detailed Guide - April 16, 2024
- Court ordered mediation – All you need to know - April 13, 2024