Emancipation of Minors

Emancipation of Minors

Are you a teenager considering emancipation or a parent wishing to learn more about the intricacies of the emancipation process? Generally speaking, children under the age of eighteen are considered to be minors and anyone over the age of eighteen is considered an adult. In some circumstances some minor children wish to be emancipated from their parents, or legally declared an adult prior to turning eighteen.

Emancipation can occur for a number of different reasons and the court may grant such a petition for a variety of factors. Many young children consider themselves incredibly independent and therefore fit for emancipation. Whether they have their own job, perhaps pay rent, or even no longer live in the parents’ home anymore. However, independent factors such as these do not necessarily make a worthy case for emancipation or allow a teenager to qualify as an emancipated adult.

There are three main ways a minor can achieve emancipation:

  • Get a Declaration of Emancipation from a judge – see below
  • Get married – permission required from parents and the court
  • Join the armed forces – permission required from parents and military acceptance must be established

If a minor child is granted emancipation this completely relieves the parents of any financial, custodial, or other rights and support. Both children and parents should be fully aware of the ramifications of achieving emancipation in order to be completely confident in their decision. Many teenagers seek independence from their parents or wish to “go out on their own” but do not fully grasp all that is encompassed with legally being declared an adult and achieving adulthood at an early age.

There are a variety of reasons a teenager may wish to emancipate:

  • A physical, sexual or emotionally abusive relationship with their parents
  • Already legally married but wish to have the same rights as an adult (parental consent and court permission required)
  • A parent or guardian has decided they do not want their child to live with them any longer
  • The living situation at a teenager’s home is morally unbearable

Because there is so much weight behind the decision to emancipate, California courts require a legal process. If a minor child is emancipated they can apply for a work permit, get medical care, live independently and apply for college. If they achieve emancipation they are required to go to school, cannot get married with parent’s permission, and will go to juvenile court is they break the law. Again, each state is different when it comes to legal emancipation process requirements, so it is important all parties are familiar with the applicable laws.

Broadly speaking the emancipation process requires the petition by a minor to the court, sufficient evidence in support of the petition, and an appearance at a hearing that may require testimony to be given.

To receive emancipation the minor must prove all of the following factors to the court:

  • Minor must be the minimum age required (varies depending on state of residence)
  • The minor lives independently from their parents and has established its own form of income which allows them to support their residence and lifestyle
  • The minor has a steady and reliable source of income and is financially able to fully support himself or herself
  • The minor’s ability to demonstrate their maturity level and proficiencies

If a minor is granted emancipation and is legally considered an adult, this does not override age requirements for other legal rights. Achieving emancipation does not grant the right to vote, the ability to purchase alcohol or marry without parents’ consent before the legal achieve of majority in the applicable state of his or her residence. Emancipation status can also be revoked if the teen decides to return to their parents’ home or care.

The decision to become an adult prematurely is a big one, and taking on the rights and responsibilities is not easy. Teenagers should be sure they have considered and weighed all factors and consequences before moving forward with the legal emancipation process.

There can be many alternatives to the process should you decide emancipation may not be for you:

  • Speak with an adult you trust and value their opinion. Whether this person is a close grandparent, aunt or uncle, or a guidance counselor or church mentor. This person may be able to hear your reasoning and wishes, and may also be able to speak your parents if you feel that is appropriate. Having a uninvolved mediator is often helpful to speak with both sides and reach the best logical decision.
  • If you are involved in an abusive relationship there are many hotlines or child protective services that will offer support, advice and often times an alternative option for your living situation. This may be an option better suited for your current needs if you cannot financially support yourself but wish to be removed from your current home.
  • Many teenagers and parents just don’t get along. As unfortunate and emotionally frustrating as this may be, emancipation is probably an extreme solution to this problem. You may be better off staying with a close relative or friend and working through things that way.

If you or someone you care about is considering the legal emancipation process, you may have questions or confusions you would like to clarify. A family law attorney is often incredibly helpful in helping you make the best choice for yourself and your situation. If you’re not sure whether emancipation is the best choice for you or a minor to make right now, call Fischer & Van Thiel LLP at 760-722-7646 today and let us help you with your questions.

Mike's Top FAQs About Child Custody

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

Posted in: Divorce, Family Law, Military Divorce, Property Division

How are disability payments to a military veteran handled in a divorce proceeding?

How are disability payments to a military veteran handled in a divorce proceeding?

The federal Uniformed Services Former Spouses Protection Act (the “USFSPA”) permits divorce courts to award ex-spouses of service members part of “disposable retired pay” (the retired pay available (after necessary deductions) based on salary and years of service). How that’s divided is decided by an agreement between the parties or by the judge.

  • Under the USFSPA, military disability pay is not “disposable retired pay” and is not subject to division in divorce.
  • If a service member waives retired pay in order to get disability pay, an ex-spouse can lose out on hundreds or thousands of dollars which they might have received.

There are two kinds of military disability pay and both are excluded from the USFSPA definition of disposable retired pay:

  1. Military Disability Retired Pay: This is for those are disabled such that they can’t perform their military duties.
  2. VA Disability Compensation: This type of compensation from the Department of Veteran’s Affairs (VA) covers injuries or disabilities that occurred while on active duty, or which were made worse by active service, including service related (not necessarily combat related) mental or physical injuries.

To get these VA benefits, a service member must waive a certain amount of retired pay. If this is done, the amount waived is subtracted from the amount available to the former spouse.

Spouses can have some protections or take steps to get the maximum payments:

  1. If there is a separation or property agreement, it should include a provision stating if the service member waives any retired pay for disability pay, the service member would make a monthly payment to the non-military spouse in an amount that makes up for the lost retired pay.
  2. If there is no such agreement and the divorce issues are being litigated, the judge can be asked to retain jurisdiction to order the military member to pay spousal support in the future, or to modify an existing alimony order based on any change in the parties’ circumstances. If retired pay is reduced because of disability pay, the non-military ex-spouse could request the judge to order the military member to pay spousal support (or increase it) to make up for the retired pay that’s been lost.

 

Posted in: Divorce, Family Law, Military Divorce

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.

The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case.  This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.

A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.

There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.

Posted in: Divorce, Family Law, Military Divorce

What is a Family Care Plan for Child Custody in a Military Divorce?

What is a Family Care Plan for Child Custody in a Military Divorce?

As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.

A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”

A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.

Posted in: Divorce, Family Law, Military Divorce

Can parents create their own agreement for child support?

Can parents create their own agreement for child support?

Yes, parents can stipulate their own agreement regarding child support, but it must be approved by the court. In order for the court to consider reviewing the agreement, it must meet the following guidelines:

  1. There must already be an open court case between the parents.
  2. The agreement must contain the following information:
    1. Each parent is fully aware of his/her child support rights.
    2. Each parent is aware of what the guideline child support amount would be.
    3. Neither parent is feeling pressured or forced to agree on the stated amount.
    4. Neither parent is receiving public assistance or has applied for public assistance.
    5. Both parents think that the agreed upon amount is in the best interest of the child.

After you have reached an agreement with the other parent and have created a stipulation consistent with these guidelines, you will both need to sign the document. If you do not have attorneys, your signatures will need to be notarized. You can then submit the stipulation for the court’s review. If you have a court date scheduled, you can bring the stipulation with you to the hearing for the judge’s review and signature, or you can go to the courthouse and ask to speak with a family law clerk to get it approved and signed.

After you have received the judge’s signature, you’ll need to file the original with the court clerk, and serve a file-stamped copy of the order on the other parent (or their attorney, if they have one.)

Posted in: Child Support, Family Law