What is Legal Emancipation?
When the average American thinks about the rights of minors, the issues that come to mind may relate to the legal age at which teenagers can obtain a driver’s license or marry without parental consent. While these rights go hand-in-hand with being a minor in America, they do not directly impact the youth’s legal standing in relation to his or her parents or guardians. A minor who is under the age of 18 is, in the eyes of the law, a child with limited rights. Some of these rights are called into question when the minor is emancipated by the decision of a court . In Indiana, there are a number of different ways in which a minor might be legally emancipated.
So, what exactly is legal emancipation? Legal emancipation is a legal term for the situation where a minor can be granted some of the rights and privileges of adults. If they receive this emancipation, they can make many of their own decisions without parental guidance. In relation to personal responsibilities, certain privileges, obligations and responsibilities are extended to the child—while also relieving parents of some of their obligations as well.
Criteria for Emancipation in Indiana
Indiana’s law on emancipation of minors differs from state to state but the laws of Indiana are a bit more complicated than most when it comes to emancipation of a minor. Emancipation, which is the process in which a minor is declared legally independent from his/her parents, was first established by statute in Indiana in 1971 and has been modified several times since then. The most obvious form of emancipation requires on finding of a change in circumstances, with the burden of proof resting with the person seeking the change. For example, this may be the requirement of a parent to provide college expenses and other usual expenses. Emancipation itself terminates parental support obligations. See Shimotsu v. Shimotsu, 918 N.E.2d 759, 764 (Ind. Ct. App. 2009) (Divorce Decree language regarding child support for emancipated child is not insufficient for mother to claim retroactive payment of child support.)
Legal emancipation requires more than age and should not be confused with those provisions that provide for certain actions being taken without the consent of a parent. For example, while a minor may obtain a work permit with the permission of an apparent custodian, they may not be legally emancipated.
In Indiana, there are two statutory requirements to emancipation of a minor: First, the minor must be older than 17 or if a high school graduate, the minor must be older than 18 and having completed the grade year that he or she was entitled to graduate. Under these circumstances, the minor has better showing of emancipation than other circumstances.
On the other hand, a minor 16 or older may petition the court for emancipation under IC 31-36-1. As a practical matter, Indiana requires that the "parent or guardian" of a minor be given notice of the petition for emancipation by a "reasonable" person or the court. This creates an added burden for those who cannot locate the parent. The relevant portion of the statute provides as follows:
"IC 31-36-2-3.5 Petition of emancipated minor. Sec. 3.5. (a) A minor who satisfies at least one (1) of the following criteria may petition the court to declare the minor emancipated: (1) The minor is sixteen (16) years of age or older. (2) The minor is less than sixteen (16) years of age, has completed the grade year that the minor was entitled to complete in order to graduate from high school, and has not been enrolled in high school for at least one (1) calendar year. (b) The petition must include the following information: (1) specifics concerning the parentage of the minor and the identity of the minor’s parent or guardian. (2) information demonstrating that the petitioner has either been abandoned by both parents, or that the petitioner’s custodial parent is incompetent or unfit to have custody of the minor. (c) The court shall appoint a guardian ad litem for the minor to assist the minor in appearing in the proceeding and to protect the minor’s best interests in the proceeding unless the court finds all of the following: (1) The minor requests that the appointment of a guardian ad litem be waived. (2) The court determines that the appointment of a guardian ad litem is not needed to protect the minor’s best interests. (3) The minor waives the appointment of a guardian ad litem in a signed writing that is part of the petition [no forms required]. (d) A hearing must be held on the petition not more than sixty (60) days after the petition is filed. The burden of proof is on the petitioner to establish the prerequisites for emancipation. If the court grants the petition, an emancipation order must: (1) be in writing; and (2) be served upon the minor, the minor’s parent, guardian, or custodian by a reasonable method.
Filing for Emancipation
Once a minor thinks they would like to try for emancipation, the first step is to pursue their continued education and obtaining stable employment. They can then move on to the more formal steps below.
Step 1 – File a Petition for Emancipation with the Court
Although the Parent’s Advisory for Emancipation Form refers to the minor as a "Petitioner," in reality, the petition is usually completed by a parent or guardian. Ideally, the minor who would like to be emancipated files the document on their own, but often the case is that the parents file for the minor. The form is quite simple, but does include the requirement that the forms be notarized.
If the minor chooses to file the petition on their own, they go to the court that has jurisdiction and venue. Indiana Code § 31-37-13-7 says that once the petitioner provides the court with: a) general information about his or her family; b) the living situation of the minor; c) the minor’s reasons for seeking emancipation; and d) the minor’s employment and ability to financially support themselves, the court may then hold a hearing.
Petitioning the court is extremely important as minors cannot pursue emancipation absent the order of the court. Even if an employment agency or other authority understands the nuanced definition of "emancipated minor," they are not necessarily legally able to allow the emancipation if it’s not petitioned by a court.
Most of the time, the petition for emancipation will be given to the juvenile court in the county of the minor’s residence (or where the parents reside). In some situations, the juvenile court holds jurisdiction over the emancipated minor when they move cities. If the juvenile court submits the application to the county of residence, then the previous county may relinquish jurisdiction.
Step 2 – Judicial Hearing and Appearance Requirements
After the petition is filed, the court will either appoint a guardian ad litem or counsel to represent the minor at the hearing. However, hearings for emancipation generally do not take place until the minor is over 16. Courts also consider whether or not the minor has been attending school prior to holding a hearing on the weight of emancipation. The minor is required to appear at the hearing along with biological parent(s), grandparents, siblings, aunt(s), uncle(s), and guardian(s). The court will then make a determination based on all relevant information heard in the proceedings including counsel and guardian ad litem arguments.
If granted, the emancipation process is officially complete. However, the petitioner must pay a filing fee and an emancipation certificate fee to finalize the process. This is the last step in the emancipation process.
Rights and Responsibilities Post-Emancipation
The emancipation of a minor in Indiana grants that individual the right and responsibility to make certain legal decisions without the necessity of becoming dependent on their parents or guardians. This area of law is somewhat controversial due to conflicting conceptions in the law over the bounds of parental authority. However, the law now recognizes that a minor has a right to certain choices if they have been legally emancipated by the court.
Some of the most vital legal decisions that can be made by an emancipated child are those that have to do with their welfare such as the ability to enter into their own contracts regarding medical and education issues. The emancipation of a minor allows that child the right to enter into contracts independently of their parents, which was not the case before the court faced the issue.
In addition to legal contracts , the emancipation of a minor in Indiana gives them a financial independence from their parents. They are able to enter into a contract involving credit transactions and financial agreements. Although it should be noted that the contract must be for their own benefit and should not be made with the intent to provide support to their parents, which would be a violation of the law.
If the emancipation of a minor occurs after the child’s seventeenth birthday, they are recognized as being free from parental care. They can immediately enter into a contract for their own needs and proceed with their own business. Unfortunately, the emancipation of a minor does not grant them the full set of rights that an adult has under the law because they are still considered to have some dependency on their parents, especially if the emancipation is demanded from the child.
In fact, in most cases, the court will provide a financial trust to the child that will be covered by their parents. This ensures that the child still has some stability and financial security if they need it, but they still have the right to their freedom from legal control by their parents.
Pros and Cons of Emancipation
In considering whether to pursue legal emancipation of a minor, it is important to evaluate both the advantages and disadvantages that such a move will have on the minor himself as well as on both parents.
For the minor, perhaps the biggest advantage is the ability to fully control one’s life. This includes the ability to enter a contract and be responsible for it (such as a lease agreement or any other contract), make educational decisions and enter school by oneself, make one’s own medical decisions and be able to make informed decisions about all other aspects of life without parental oversight. There are very few obligations in life that require emancipation of a minor, however, allowing freedom to be granted through emancipation is a huge benefit for many young people, particularly those with troubled home lives.
The parents, of course, do not want to live under the thumb of an emancipated child, but they are also relieved of a burden that they must support their child through adulthood. Consider the case of a child with severe psychological issues that has refused to receive therapy or medication. The child has a therapist and psychiatrist involved in his care, and both of these professionals encourage that his parents sign him up for emancipation. This allows the child to have autonomy over his life and his choices, rather than being required to follow the demands of his parents. In this case, the parents benefit from the removal of some of the responsibility for the child.
While the advantages to emancipation may seem obvious, there are still downsides to consider. These include:
Given these factors, a careful consideration of the advantages and disadvantages of legal emancipation is essential to determining if emancipation is truly in the best interest of both the minor and his parents.
Legal Counsel and Resources for Emancipation
Emancipation is a complicated legal matter that may require the guidance of a trained attorney or other qualified legal professional. Fortunately, there are several resources available in Indiana for both minors and parents to obtain advice regarding emancipation. The Indiana Bar Association provides a free lawyer referral service for individuals with potential legal issues regarding emancipation. Parents and children can access this service online by submitting a query at inbar.org/lawyer-search. After you submit your information, a representative from the referral service will get in touch to assess your needs and provide a list of attorneys in your area equipped to handle your case. All referrals are free and include a free 30-minute consultation. Personal legal matters are not covered under this service, such as personal injuries, car accidents and other matters that are not directly related to officer and/or employee misconduct. Another useful resource for questions related to emancipation is the Lawyers for Children America’s "Ask a Lawyer/Law Office of America," which is both a phone service and online resource where individuals can submit their legal questions to an attorney. The service is available to minors as well as parents seeking legal help on behalf of their children . However, lawyers who answer questions on this service are not lead counsel for ongoing cases. Instead, they act as a consultation service to provide limited legal advice and guidance. For parents of children under the age of 18 in need of assistance with legal emancipation, the Indiana Guardian Ad Litem & CASA Association provides a list of "Frequently Asked Questions and Answers" regarding emancipation on their website at http://ingalcasa.org. This resource covers the essential procedures involved with emancipation, including how Guardians Ad Litem (GAL) will act as investigators for cases, how cases are prepared for court, and how GALs can help prepare the minor and parents for interviews and courtroom appearances. This resource also includes downloadable PDFs for GALs to use when investigating a potential emancipation case and for parents and children to use to gather the required evidence for their case. The Indiana Coalition Against Domestic Violence also offers a list of resources throughout the state for individuals in need of legal advice or representation regarding domestic violence and sexual assault issues. They can be found at https://www.icadvinc.org/get-help/in-your-area/.