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Emancipation

Family Court officials often are asked if a parent can petition Family Court to emancipate a minor, or conversely, if a minor can petition to be emancipated from a parent. The answer is not generally. Family Court is a court of limited jurisdiction, which means that the court has authority to hear matters only as specifically authorized by law (i.e. custody, child support, child abuse, child neglect).

In a child support proceeding, where a parent is being asked to pay support for their child, the Family Court can consider whether a child is emancipated, but that is the only circumstance under which Family Court can find that a child is emancipated, and only for the purpose of whether child support is warranted.

It is possible to bring an action for declaratory judgment in Supreme Court, however the Court must determine there is a justiciable issue. Consult with an attorney for further information.

A minor, for most purposes, is defined as a person who is under eighteen years of age. [Domestic Relations Law 2, Education Law 2.(18)]. A parent is responsible for child support, however, until the child reaches the age of twenty-one years. [Family Court Act 413; Domestic Relations Law 240.]

What is emancipation?

The definition changes according to the purpose, but Black's Law Dictionary defines emancipation as follows: "The term is principally used with reference to the emancipation of a minor child by its parents, which involves an entire surrender of the right to the care, custody and earnings of such child as well as a renunciation of parental duties."

There are three factors which can be used to evaluate whether a child under the age of eighteen is emancipated. First, is the child living separate and apart from his or her parents? Parental consent to the move is not required. Second, is the minor self-supporting? The source of income is unimportant as long as the minor does not continue to be dependent on his or her parents. Last, does the minor manage his or her own affairs? This could include having bank accounts or other property or paying for rent or food. Minors who are or have been married, or who are in the armed services would be considered emancipated.

Uses of Emancipation for Minors

  • Right to retain wages: Historically, parents were entitled to retain wages of a minor child. In New York, even today, a parent may claim the wages of a minor child upon written notification to the minor's employer within 30 days of the commencement of employment. [General Obligations Law 3-109] However, the parent may not claim the wages of an emancipated minor.
  • Right to Sue for Intrafamily Torts: Minor children are not allowed to sue a parent for injuries sustained as a result of a parent's negligence, and a parent cannot sue a minor for negligence. The judicial reluctance to entertain such actions is meant to further family tranquility and to avoid interference with parental control and discipline. But when a minor is emancipated and the parents have thereby renounced all legal obligations to the child, these policy reasons no longer apply. Thus, emancipated minors may sue their parents for negligence.
  • Right to establish a domicile: The legal residence of a minor is presumed to be that of the parent. This can be a problem for an emancipated minor who, for example seeks to attend a school in a school district other than that of the parents. Emancipated minors are allowed to establish their own legal residence and may attend school in the district where they live, even if different from that of their parents.
  • Right to receive public assistance: Emancipated minors are entitled to receive public assistance, provided they meet the eligibility requirements. For purposes of public assistance, an emancipated minor is defined as "a person over 16 years of age who has completed his compulsory education, who is living separate and apart from his family and is not in receipt of or in need of foster care." [18 NYCRR 349.5] From time to time, public assistance administrators have taken the view that a minor must sue his or her parents for support before the minor may receive public assistance. This view has been rejected by the courts in Tucker v. Toia, 43 NY 2d 29 (1977). Minors can be required to cooperate with the Department of Social Services should it decide to sue their parents, except under very limited circumstances.
  • Receipt of Medical Care: Emancipated minors may consent to medical care on their own, and providers will not be held liable for providing treatment without parental consent.

Emancipation Does Not Allow

  • Signing a lease: An emancipated minor has no greater right to enter into a contract than any other minor. Since a lease is a contract, a minor may enter into a lease, and while it is not binding on the minor, it is binding on the landlord. Thus, a minor could refuse to honor the lease, and there is little a landlord could do about it. As a result most landlords are reluctant to enter into leases with minors. The fact that the minor is emancipated makes no difference.
  • Right to marry: A minor between the ages of sixteen and eighteen must have parental consent to marry, and if under the age of sixteen must also have the written consent of a Supreme Court justice or Family Court judge, whether or not the minor is emancipated. Domestic Relations Law 15.
  • Obtain Employment Certificate: As a general rule, minors must obtain an employment certificate before they may work. The employment certificate requires parental consent, even if the minor is emancipated.
  • Buy, sell, or control real property: A person must be eighteen to buy, sell or control real property. This applies to emancipated minors as well. Domestic Relations Law 80, 84.
  • Engage in all occupations: Child Labor laws prohibit minors from engaging in many occupations. The fact that a minor is emancipated makes no difference.
  • Right to Parental Support: An emancipated minor cannot demand support from his or her parents unless the parents' conduct was such that the minor was forced to leave home.
  • Bring a court action: As a general rule, a minor may not bring a lawsuit in his or her own name; the lawsuit must be joined by a parent or an adult representative. CPLR 1201. (This does not include actions in Family Court).
  • Right to vote: One must be eighteen years of age to vote. An emancipated minor cannot vote.

This summary is to provide information only. If you have any specific questions you should consult with an attorney.

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