Emancipation of minors
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Emancipation of minors is a legal mechanism by which a minor is freed from control by their parents or guardians, and the parents or guardians are freed from any and all responsibility toward the child. In some cases, emancipation can be granted without due court process when the minor is bound to make a decision alone in the absence of the parents, who might be dead or have abandoned the minor—essentially a divorce from the parents.
Parents have a number of legal and equitable duties while bringing up their biological child. Failure to meet these requirements will result in the court taking legal action against the child's parent or parents unless he or she is not their biological child, such as a stepchild adopted informally. Children have expectations from parents but legally they owe nothing to their parents. Although rules vary in different households, legally the child does not have to comply.
In Roman law the father of the extended household, the pater familias, exercised autocratic authority through patria potestas over his extended family, including his wife, his children and his slaves. Such rights persisted through feudal and English common law, assigning most people the status of personal property (chattel). In common law, emancipation is the freeing of someone from this control. It grants the emancipated the ability to legally engage in civil actions, and frees the former owner of liability.
In common-law jurisdictions, chattel slavery was abolished during the 19th century and married women were given independent rights during the 19th and at the start of the 20th century. Later during the 20th century, common law jurisdictions split over both children's rights and youth rights; in some, such as the USA, a traditional father's control became a right to shared parental control and emancipation remained a remedy for mature minors, but in others, for example England, the idea of absolute control over minors has been repudiated; parent's responsibilities are emphasised and children's rights promoted. In these jurisdictions, the rights of minors to act on their own behalf are granted on a case-by-case basis if a minor can show the capacity and maturity to handle them, and juvenile emancipation from control is deemed unnecessary.
It isn't as simple as all-or-nothing emancipation in some places and gradually acquired rights in others. For example, in the US minors have some rights to consent to medical procedures without parental consent or emancipation, under the doctrine of the mature minor. In England a minor may still not own and administer land. Also in any jurisdiction statute law may limit action due to insufficient age, such as the purchase of alcohol or the right to drive on public roads, without regard to capacity.
In all countries, children's rights have made huge leaps forward during the last thirty years. The rights of the child described in the UN Convention on the Rights of the Child 1989 are recognized and ratified the world over, except within the USA, which may explain why even though other jurisdictions recognize parental control and juvenile emancipation, nowhere else is the issue of emancipation so important.
Global inderstanding of emancipationEdit
Common law countries that retain the idea of control and emancipation include USA, Canada and South Africa. Countries that have followed the route to gradual civic rights for adolescents include England, Ireland, Australia and New Zealand. In these countries emancipation is unavailable. Statutory provision for juvenile emancipation has spread outside of common law jurisdictions, for example Brazil.
In other countries some aspects of emancipation are in force. The right to engage in civil acts as an adult are granted after marriage, as is the freedom of liability for the parent. In Argentina, where there is no lower age limit on marriage, child marriage is sometimes used as a mechanism for emancipation. The rights granted in such cases may not be as full as common-law emancipation.
Routes to emancipationEdit
Express: When the parent(s) or legal guardian agrees with the minor that the minor can leave home, become self-sustaining, and control their own wages and assets. Courts may review. For example, elements of coercion can void the emancipation, so if a child agrees to leave because their life has been made intolerable through fault, the court may decree the parents still owe a duty of support.
Implied: When circumstances dictate that a child has become emancipated, even though no explicit agreement was made. Common reasons include
- Active military service
- The minor leaving home and acting in a responsible and self-sustaining manner for a number of months. Reaching a de facto state of separation without explicit agreement has dangers: a child might be declared a runaway, a parent charged with neglect.
- Other reasons may be given by statutory definition or through case law.
Court Order: A court may declare a minor to be emancipated when deciding a relevant case or following a petition of emancipation. Not all jurisdictions that support emancipation allow a direct petition to the courts, for example in Canada only Quebec does. Even in those jurisdictions that do, the court may not allow a minor to file on their own behalf (as they are not yet emancipated), nor may they directly instruct a lawyer to act on their behalf. Instead they petition through an adult next friend. Courts decide in the minor's best interest: between parental control, care through child services (including fostering or adoption), and emancipation.
Partial: A minor may be considered emancipated for some reasons and not others. A grant of partial emancipation may, for example, be given to homeless youths to allow them to consent to state housing programs. Marriage, incarceration, living apart, pregnancy and parenthood may automatically confer some of the rights of emancipation, particularly health consent and privacy in US states.
Although allowed for in common law, some of these methods could be almost impossible to use in practice in a particular jurisdiction, especially if it has no relevant statute or case law.
Minors are under the control of their parents or legal guardians until they attain the age of majority, at which point they become legal adults. In most states this is upon turning 18 years of age. However, in special circumstances, minors can be freed from control by their guardian before they reach the age of majority.
The exact laws and protocols for obtaining emancipation vary from state to state. In most states, minors must file a petition with the family court in the applicable jurisdiction, formally requesting emancipation and citing reasons it is in their best interest to be emancipated. These minors must prove financial self-sufficiency. In some states, free legal aid is available to minors seeking emancipation, through children law centers. This can be a valuable resource for minors trying to create a convincing emancipation petition. Students are able to stay with a guardian if necessary.
Emancipation is not easily granted because of the subjectivity and narrowness of the definition of "best interest." Some minors have been victims of abuse. In most cases, the state's department of child services will be notified and the child placed in foster care. Others are minors who are seeking emancipation for reasons such as being dissatisfied with their parents' or guardians' rules.
Laws vary by state. In California, a minor cannot use the excuse of not obeying the parent's reasonable and proper orders or directions of parents, and that minor could become a ward of the court, which is different than emancipation.
Based on federal and state laws, those whose mental disability is so severe that they are incapable of caring for themselves may not necessarily be considered or legally viewed as emancipated, even though they have attained the age of majority. That may or may not affect legal matters related to such things as insurance benefits, SSI, SSDI, wills, tax obligations to them and their caregivers, medical decisions, religious choices, residential and other accommodations, etc. due to their non-emancipated status.
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