All states have laws dealing with the "emancipation" of minors; that is, laws that specify when and under what conditions children become independent of their parents for important legal purposes. A complete reference to statutory provisions for all 50 states, pertaining to termination of parental rights, age of majority or emancipation itself, can be found in the LII State Law pages.
Approximately half of the states regulate emancipation by statutes specifically designed for that purpose. These statutes may specify the conditions required or the procedures for seeking emancipation. Statutes vary considerably from state to state, but under common law most states allow for the possibility of court-reviewed emancipation. No fixed age of emancipation exists, yet a minor is presumed to become emancipated upon reaching the age of majority. In most states, the age of majority is 18.
If a state does not have a specific emancipation statute or even a procedural rule, the court may act as the primary arbiter of cases involving a minor's claim to emancipated legal status. Emancipation on the basis of judicial decree requires a petition. The petitioner is typically one of three kinds of legal personage: a minor, a parent of a minor or a next friend/guardian ad litem. Most states require that adults petition the court, although emancipation is a right extended to children. In most instances, a petitioner must file a petition for emancipation with a county or a probate court, as these courts have jurisdiction over matters concerning juveniles and children. A petition of emancipation must be accompanied by evidence of surrounding circumstances and conduct demonstrated by parents, minors or both, that contradicts and invalidates the common legal understanding that exists with regard to the rights and responsibilities of parents to children and vice-versa. Prior to and now complimentary of emancipation statutes regulating the emancipation of minors, common law serves as the legal basis upon which such cases are decided.
Courts review the evidence presented by petitioners and grant emancipation in cases where sufficient proof of circumstances and conduct determines emancipation as a best interest of a child. Factors such as the child's age; the mental and physical welfare of the child; the ability of the parents to provide basic material support to the child in the form of food, shelter, clothing and medical care; and the mental and physical welfare of the parents all play an important role in establishing a child's best interest. The courts require petitioners submit substantial evidence of emancipation's necessity before deciding to terminate parental rights and responsibilities because emancipation of a minor by judicial decree represents a significant juridical decision that in most cases irreversibly transforms the common law mandate of providing custody and care for their minor children that parents bear.
Whether a minor has been emancipated is a question of fact which must be proved to the satisfaction of the court. Direct proof in the form of a recorded act or manifested by a formal technique is not required. However, clear evidence of circumstances and conduct betraying parental right and responsibility for care of a child must be established before the court will convey emancipated status upon a minor.
In most emancipation cases that come before the court, emancipation is implied from evidence of circumstances and conduct that negatively affirm the fundamental relationship that both law and society recognize as existing between parents and children. An implied emancipation arises from minor and/or parental conduct inconsistent with the right and duty of parents to exercise control over and provide care and support for their child during its minority. Desertion, abandonment, non-support and other censurable conduct on the part of the parent constitute reasonable circumstances for implied emancipation of a minor child. Marriage or enlistment in military service by a minor brings about a new relationship of obligation and responsibility between the child and a third party that transforms the status of the child, obviates parent-child relations, and thereby effects an implied emancipation. Separate residence or departure from the parental home is not in and of itself a sufficient circumstance denoting implied emancipation.
The court, ever wary of absolutely severing the common law relationship between parents and children, sometimes grants emancipation for particular legal purposes while withholding it for others. In cases where particular circumstances and conduct justify the child's emancipation for certain purposes, implied partial emancipation is established. A third form, express emancipation, exists as a legal possibility yet is rarely decided by the court. An express emancipation takes place when a parent agrees with its child that the child may leave home and collect its wages and control its assets. Express emancipation may come under review by the court if the legal purposes for which the child was emancipated are interpreted more broadly than they were intended at the time of parental agreement and/or a dispute arises over who has the right to control or lay claim to the child's assets and services.
See also: Family law