Emancipation of Minors Explained

In California, an emancipated minor is a person under the age of eighteen who has legally freed himself or herself from the legal and physical custody and control of his or her parent(s), or guardian(s).

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An emancipated minor is legally responsible for his or her legal decisions and actions. The term “minor” means a person under the age of eighteen.

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How to Become an Emancipated a Minor: There are three different methods by which a minor may be become emancipated in California:

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1. Military enlistment by a minor with parental or guardian consent,

2. Marriage with parental or guardian consent, or

3. Declaration of emancipation granted by a judge.

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Military Enlistment: A minor who enlists in the military with parental consent is automatically legally emancipated. If the minor is discharged from the military while still a minor the minor’s emancipation is rescinded.

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Marriage: A minor who is at least fourteen (14) years old, and who marries with parental consent, is automatically legally emancipated (no court order for emancipation required).

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Note: A minor who is emancipated by marriage remains emancipated even if the minor subsequently obtains a divorce or legal separation from his or her spouse. As stated, emancipation by marriage with parental consent requires the minor to be at least fourteen (14) years old or older at the time of marriage.

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Caution: A spouse married to a minor with the minor’s parental consent might be legally entitled to engage in consensual sexual intercourse with his or her spouse without violating California statutory rape laws (unlawful sexual intercourse). However, to become legally emancipated by way of marriage, the minor must be at least fourteen (14) years old. This is true despite the fact that there is no minimum legal age required before marriage in California.

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For example, a person who has sexual intercourse with a minor under the age of fourteen (14) may be charged with very serious sex crimes such as lewd and lascivious acts on a minor (PC 288(A)), and more. These criminal charges may be levied against the defendant even when the defendant is married to the minor with the minor’s parental consent and even when the sexual intercourse was otherwise “consented to” by the defendant’s minor spouse. This is because the exception to the California statutory rape laws only apply to emancipated minors, if they apply at all (See “Note II” below).

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Note II: Like all laws, the laws related to the emancipation of a minor, the age of valid consent to sexual intercourse, and California statutory rape, are subject to change and subject to possible complex interpretation, especially for Common Law Marriages involving a minor that relocates to California from a state that does not require parental consent to marry at Common Law. Therefore, a minor who is considering emancipation through marriage with parental consent should consider consulting with a family law lawyer and/or criminal defense lawyer before proceeding to marriage in order to ascertain the current state of the law on these issues. The same is true for a person who is considering marriage to a minor.  

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Important: An emancipated minor may not legally engage in sexual intercourse unless the minor’s emancipation is created by way of marriage (See above). The same is true for a person who engages in sexual intercourse with an emancipated minor. In fact, a person who engages in sexual intercourse with an emancipated minor, who is not the spouse of the defendant, could face severe criminal liability, civil lawsuits, restraining orders (criminal protective orders and/or domestic violence restraining orders (DVRO)), and more.

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Judicial Emancipation:  A judge may grant legal emancipated status to a minor with a declaration of emancipation (judicial emancipation). Before the judge grants the declaration of emancipation to a minor, the minor must prove the following four requirements:

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• The minor is not living at his or her parent’s home

• The minor has legal means to support for himself or herself

• The minor is at least fourteen years old

• Emancipation is in the minor’s best interest

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Note: What is considered to be in the “best interest of the minor” depends on many factors and every circumstance is different.

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For example, it may be in the minor’s best interest to emancipate himself or herself when his or her parents are not fulfilling their parental responsibilities or they are mismanaging the minor’s finances or assets, etc.

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Rights of an Emancipated Minor

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An emancipated minor has most of the rights and responsibilities of being an adult, including: a right to obtain medical insurance and care without parental consent, a right to make legal decisions and sign binding contracts, a right to sign up for college, a right to be free from parental custody and control, a right to work and keep earnings, a right to control his or her estate planning (wills, trusts, power of attorney), a right to take an interest in a corporation (stock, proxy vote, trade, own, etc.), and more.

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Responsibilities of Emancipated Minors

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An emancipated minor is responsible for his or her own actions, including paying his or her own bills, providing for his or her own care, paying his or her own legal debts, and more.

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Emancipation Limitations

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An emancipated minor must attend school until at least sixteen years of age in California, may not work full-time, may not marry without parental consent [However, a minor’s marriage with parental consent automatically emancipates the minor [See above], may not engage in sexual intercourse, may not vote or drink alcohol, may not drive until the age of sixteen, and more.

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Note: An emancipated minor who commits a crime will be adjudicated in juvenile delinquency court, not adult court, unless the juvenile delinquency court transfers the minor’s criminal case to adult court.

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Granting a Declaration of Emancipation

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If a minor meets the four requirements for judicial emancipation he or she may request a declaration of emancipation from a judge. To make a request for a declaration of emancipation the minor must file and serve the necessary emancipation forms on all the proper parties, attend a court hearing, and take steps to finalize the emancipation (if granted).

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Note: Minors who are considered wards of the state must file any request for emancipation in juvenile dependency court. Otherwise, a request for declaration of emancipation is generally heard in the family law court.

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Preparing for Court: Preparing emancipation forms, filing, serving, and presentation of argument in court should be handled by an experienced family law attorney who has experienced in these matter. If a minor cannot afford an attorney he or she might find useful direction in the emancipation forms provided by the judicial counsel of California.

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Caution: Legal forms by themselves do not provide information on drafting declarations, presentation of evidence, obtaining discovery (evidence), following court rules and legal procedure (especially legal deadlines), legal research, and what issues to avoid in court. If possible, always enlist the services of a family law attorney experienced in the area of emancipating a minor. Remember, just because a non-lawyer petitioner might not be familiar with the rules of court and legal procedures as they relate to emancipating a minor, does not mean that the family law judge will be lenient or excuse those rules and procedures.

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Note: Notice must be given to the minor’s parents in emancipation cases, unless the court finds good cause to waive the notice requirement or the minor’s parents cannot be located. Also, parents have the right to object to the minor’s emancipation request.

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Voiding a Minor's Judicial Emancipation

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Emancipation is intended to be permanent. However, a judge may void the declaration of emancipation if the judge finds that the minor purposefully made false statements or relevant omissions on his or her petition for emancipation, or, if the minor becomes unable to support himself or herself after being declared emancipated.

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If a court terminates the emancipation status of a minor then the minor’s parents or guardians will retake legal custody of the minor; however, the legal parents or guardians will not necessarily retake physical custody of the minor.

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Note: Voiding (terminating) the declaration of emancipation does not void any contract obligation, or property right, that were acquired or became effective during the period of emancipation.

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Parental Obligations after Emancipation

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After a minor becomes legally emancipated the minor’s parents are no longer financially responsible for the minor. Therefore, a parent may file a request to terminate previous child support orders. Also, parents and legal guardians are no longer vicariously liable for the civil wrongs (torts) of their emancipated children.

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Note: In rare situations, a judge may order the payment of child support for a minor who is emancipated if the minor reasonably and detrimentally relied on a parent’s promise to continue support once the emancipation was completed.

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For more information on how to emancipate a minor contact our divorce and family law attorneys today for a free consultation. Our family law firm has successfully handled hundreds of legal matters in every court in the Inland Empire, including CPS defense, annulment, bigamy cases, divorce, father’s rights, custody and support cases, paternity, domestic violence cases (DVRO), juvenile dependency hearings, and more. Call today!

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909-307-2645

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