Most people think of emancipation as the legal process someone under 18 years of age (a minor) goes through to get the legal status of an adult. A minor child may be emancipated for a specific purpose. It is important to remember that a minor child is never completely emancipated. An emancipated minor will always face some limits. For example, a 16 year old may be emancipated for the specific purpose of giving medical consent but is not permitted to vote or purchase alcohol.
Emancipation affects the relationship between the minor child and his/her parents. Emancipation also allows a minor to be eligible for services that administrative agencies provide. There is a lot of confusion, however, concerning the question of how or when a minor child becomes emancipated.
In Pennsylvania, there is no general emancipation statute. Many statues and regulations refer to emancipated minors and from these sources a common understanding has developed about an "emancipated minor."
If a minor marries or enters the military he/she is automatically emancipated. Without either of these actions, many factors determine if a minor is emancipated: Whether the minor child lives with his/her parents; whether the minor child is supported by his/her parents; whether the parents and the minor child intend for the minor to be independent; whether the parents have control and authority over the minor child; and whether the minor is able to support him/herself. In short, whether a minor is emancipated depends on the factual situation.
It is usually not necessary for a minor to go to court to be declared emancipated. Since a minor usually wants to be declared emancipated for a specific reason, administrative agencies that provide certain services are usually the offices which decide if a minor is emancipated.
II. PUBLIC ASSISTANCE
Usually, an individual must be at least 21 years old to receive public benefits for him/herself. However, anyone of any age can apply for public assistance, so the Department of Public Welfare must determine if a minor is emancipated.
Medical Assistance (MA): A minor is considered emancipated if he/she is:
- married or
- not under the control of his/her parents, even if the minor lives with his/her parents.
General Assistance (GA): A minor is considered emancipated if he/she is:
- married or
- aged 16 or older and not living with his/her parents and is not under the control of his/her parents or
- an orphan aged 16 or older or
- under the age 18, in the custody of Children and Youth Services (a judicial determination of emancipation is required for this category).
Aid to Families with Dependent Children (AFDC): A minor is considered emancipated if he/she is:
- a minor parent with control over his/her child and is not under the control of his/her parents or
A public assistance caseworker must focus on whether the minor pays rent (even while living at the parents' home) and whether the minor child could be subject to parental control. The caseworker makes the initial determination of emancipation. A minor has the right to request a fair hearing if he/she disagrees with the caseworker's decision regarding emancipation.
III. MEDICAL CONSENT
A minor may be emancipated to give consent for medical or dental services for him/herself, or for his/her child. A minor may give consent for his/her own medial treatment if he/she:
- has graduated from high school or
- has married or
- was pregnant
In addition, a minor child may consent to treatment for his/her child.
IV. SCHOOL ATTENDANCE AND RESIDENCE
Emancipation may affect a minor child's education in two circumstances. The first situation is a minor's school attendance. Usually, parents are subject to criminal sanctions when their child's absences from school violate the compulsory school attendance laws. Under these laws, parents can be fined $2.00 for the first offense and no more than $5.00 for each following offense. If parents fail to pay these fines, they can be sentenced to the county jail for up to 5 days.
However, parents are only responsible for their child's absences from school if the child is under their "control or charge." Therefore, parents are not liable if their minor child is emancipated.
The second situation affected by a minor's emancipation status is which school district a minor must attend. Generally, a student must attend the school district in which his/her parents reside. However, if the minor child is emancipated, then the emancipated minor may attend the school district in which he/she lives.
Once again, a minor child need not go to court to be declared emancipated. A school district should determine if a minor is emancipated by getting information from the student and the student's parents. A school district should focus on whether the student still lives with the parents and whether the parents provide any support. If a school district is unwilling to collect the information it needs to determine if the student is emancipated, you may require legal assistance.
V. PARENTAL LIABILITY
Under the law, parents are liable for the tortious acts of their children. A "tortious act" is an act that is willful and results in an injury. An "injury" includes injury to a person, theft, and destruction or loss of property. However, there are limits on the amount that parents are liable for as a result of their child's conduct. Parents are liable for a maximum of $300 for their child's tortious act toward any one person. Parents can only be liable up to $1,000 no matter how many people suffer an injury as a result of their child's tortious act.
A parent is not liable for their child's tortious acts if:
- the parent does not have custody of the child and is not entitled to custody of the child or
- the child is institutionalized or
- the child is emancipated.
Again, emancipation is not defined under this statute. In this situation, a parent who is being sued for his/her child's tortious acts should raise emancipation as an affirmative defense. A court would then determine the parent's liability using the emancipation factors discussed earlier.
VI. CUSTODY AND ADOPTIONS
Regardless of age, a parent is entitled to custody of his/her child. In any custody lawsuit, the court must decide the best interest of the child. The law does not require that a minor parent be a certain age to be awarded custody of his/her own child. However, a guardian must be appointed for a minor parent in a custody lawsuit. The purpose of a guardian is to act on the minor parent's behalf during the custody litigation.
The Pennsylvania Adoption Act defines a minor parent as someone under the age of 18. A minor parent who wants to place his/her own child up for adoption does not need the consent of his/her parents or guardians.
Thus, to retain custody or voluntarily place a child for adoption, a minor parent is, in effect, "emancipated."
VII. JUDICIAL DETERMINATION OF EMANCIPATION
As stated earlier, a minor child may ask a court to declare him/her emancipated but court action is often unnecessary. A court will look at the facts of the minor's situation. For example, a 13 year-old who wants to leave home is not likely to be declared emancipated because he/she does not have the ability to support him/herself. In effect, the minor child must already be living independently for a court to determine that the child is emancipated.
A minor may petition a court to confirm his/her emancipated status by either submitting a "Petition for Emancipation" or by filing a "Complaint For Declaratory Judgment On Plaintiff's Emancipation Status. A minor should get legal assistance when asking a court for a judicial decree of emancipation.
Parents must support their children who are unemancipated and 18 years of age or younger. Likewise, parents are not required to support their emancipated children. However, the Divorce Code does not state how to determine if a minor child is emancipated for the purpose of ordering support.
Pennsylvania courts say that, "emancipation is a question of fact to be determined by the circumstances presented in each case and that the criterion is whether the child is dependent upon his/her parents for support or is independent of such support." Maurer v. Maurer, 382 Pa. Super. 468, 555 A.2d 1294 (1989). For support purposes, a child is not emancipated if the parents abandon the child or because the minor child is able to become self-supporting.
Finally, a minor child may move "in and out of emancipation" for support purposes. In other words, circumstances may change the child's emancipated status so that he/she becomes dependent once again on parental support. In support matters, therefore, the main issue in determining if a minor child is emancipated is whether the child relies on the parents for support.
A minor becomes emancipated by his/her specific circumstances and behavior. An emancipated minor will never be allowed to do everything an adult may do.
A minor may want to be declared emancipated for several reasons. Usually administrative agencies will decide if a minor is emancipated. If you believe an agency should make an emancipation determination but the agency will not cooperate with you, you should seek legal assistance.