Emancipation of minors
Emancipation of minors is a legal mechanism by which a minor before attaining the age of majority is freed from control by their parents or guardians, and the parents or guardians are freed from responsibility for their child. Minors are normally considered legally incompetent to enter into contracts and to handle their own affairs. Emancipation overrides that presumption and allows emancipated children to legally make certain decisions on their own behalf.
Depending on jurisdiction, a child may be emancipated by acts such as child marriage, attaining economic self-sufficiency, obtaining an educational degree or diploma, or military service. In the United States, all states have some form of emancipation of minors.[1][2]
Even without a court proceeding, some jurisdictions will find a minor to be emancipated for purposes of making a decision in the absence of the minor's parents or guardians. For example, a child in most jurisdictions can enter into a binding contract to procure their own basic needs. However, when a child's needs are not provided by a parent, the child is often deemed a ward of the state and receives a court-appointed guardian.
History[edit]
In Roman law the father of the extended household, the pater familias, exercised autocratic authority through patria potestas 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 emphasized 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.
An emancipated minor does not simply acquire all rights of an adult; likewise, a child does not lack such rights merely because they are not emancipated. 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.[3] 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.
Global understanding of emancipation[edit]
Common law countries that retain the idea of control and emancipation include Canada, South Africa, and the United States. Countries that have followed the route to gradual civic rights for adolescents include England and Wales, Ireland, Australia and New Zealand. In these countries emancipation is unavailable
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.[4] In Argentina, where there is no lower age limit on marriage, child marriage is sometimes used as a mechanism for emancipation.[5] The rights granted in such cases may not be as full as common-law emancipation.[6]
Routes to emancipation[edit]
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.[7]
Implied: When circumstances dictate that a child has become emancipated, even though no explicit agreement was made. Common reasons include marriage, military service, or other reasons 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[8] 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 purposes 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.[9] Marriage, incarceration, living apart, pregnancy and parenthood may automatically confer some of the rights of emancipation, particularly health consent and privacy in US states[10] unless the minor is younger than the absolute minimum age of emancipation in their state.
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.