What is Emancipation?
Emancipation refers to a legal finding of majority prior to the age of 18 years. It is an act by which a parent gives up or losses parental control over the minor child. Under Louisiana law, a minor is 17 years old. Thus, a minor is subject to parental control on the part of his parents until that minor reaches 18 years of age. Louisiana Civil Code article 385 states: the father and mother are charge with the care and education of their children during minority, i.e., until they reach the age of eighteen years, and with their supervision, control, and correction, according to their station in life, even to the point of chastising them occasionally. As article 382 reads: Minority is the state of a person who is under the age of eighteen years. (Emphasis added.) The general rule is that a minor is not bound by his contract unless he has been legally emancipated. The emancipation law permits a minor who is at least 16 years of age to be freed from parental authority and to enter into certain types of contractual obligations . There are two means of emancipation.
Judicial Emancipation Judicial Emancipation is a proceeding where a minor requests that the court grant his/her emancipation. La. C.C. art. 3942. An action for judicial emancipation may be brought by the minor alone or jointly with his/her parent(s) at any time after the minor reaches the age of sixteen. La. C.C. art. 3941 and 3942.
Emancipation by Act of Sale or Donation Under Louisiana law, a parent may emancipate his child without the necessity of court approval prior to the age of 18. La. C.C. art. 3950. Emancipation by act of sale or donation is limited to the sale or donation of the "movable" property belonging to the minor. La. C.C. art. 3946. A minor cannot be divested of land by sale or donation. An act of emancipation by sale or donation could include, but is not limited to, the following: ♦ Bank accounts ♦ Cars ♦ Life Insurance ♦ Personal Property The purchaser of the emancipated property acquires full ownership in the property.
Requirements for Emancipation in Louisiana
In Louisiana, when a minor seeks emancipation, there are a number of eligibility requirements they must meet. Generally speaking, there are three categories a minor must qualify for to obtain a judgment of emancipation. They must be either married, a parent or be competent. Under the current law, if seeking an emancipation due to age, a minor must be over the age of 16 and under the age of 18. If married, a minor must be over the age of 18 and under the age of 21 on the date of application. If a parent, they must be at least 18 years old to qualify for an emancipation domiciliary judgment. Guardianship over a minor is not equal to emancipation. A guardian is required to maintain the protections over a minor until the minor reaches age 18 years old. In order to terminate the guardianship, a Petition for Removal of Guardianship must be filed with the court.
In order to obtain a judgment of emancipation, the minor must be domiciled or reside in the state of Louisiana. Louisiana Revised Statute 9:951 specifically discusses the process of emancipation and vesting the minor with majority status.
Marriage alone does not terminate a parent’s obligations to provide support for their child. Under Louisiana Civil Code article 148, a parent will continue to owe the obligation of support for their minor child until the child reaches legal age.
Additionally, in order to qualify for emancipation as a competent minor, the following must be true:
- The minor must be over the age of 15;
- There must be no curatorship in place over the minor’s estate;
- The minor must have mental capacity to make sound decisions; and
- The minor must be residing independently in good faith.
In order to terminate a minor’s incapacity, do so, a Petition for Incapacitation must be filed with the court. Under Louisiana Revised Statutes 9:1029, Incapacitated persons may petition the court for an order to terminate the parent-child relationship.
In order to qualify as parents, the minor or minors must be over the age of 17 and bring a petition for emancipation with the court seeking to vest them with major status and create permanent and irrevocable emancipation.
Under Louisiana Revised Statute 9:953, a petition for emancipation must include the following information:
· Time and place of birth;
· Name, residence, and birth place of the minor’s father and mother;
· Minor’s residence;
· Minor’s income;
· Minor’s sources of income;
· Minor’s assets;
· Minor’s liability;
· Minor’s current education;
A petition for emancipation is either contested, meaning all parties involved agree to hearing, or ex parte, meaning that one or both parties are unaware of the hearing and only notice is given. In ex parte orders, the judge decides the case based on limited information, not giving both parties an opportunity to be heard.
Applying for Emancipation
When a minor seeks to be emancipated under Louisiana law, there is a specific legal process they must follow. Deep familiarity with this process is critical for ensuring the emancipation is granted and that it is done so in a timely fashion. When minor children who wish to become legally emancipated enlist the services of an attorney, as they should, the lawyer will handle all of the following steps. The first step in the emancipation process is petitioning the court. The petition for emancipation must be filed in the district court where the minor applicant resides. For instance, if the minor lives in East Baton Rouge Parish, then the petition would be filed in the 19th Judicial District Court, which is the district court for Baton Rouge, Central, and Zachary. The petition should include the following information: The second step is to provide consent. If the minor meets the court age requirement, they do not need parental consent to seek emancipation. If the minor is below age 14, they will need permission from one or both parents, or in some cases, the court may appoint a tutor/ad litem to help them pursue the emancipation. When both parents are alive, and the minor reports living with both parents – even if just part-time due to visitation – the court typically will appointed a tutor/ad litem, a lawyer who can serve as the minor’s representative in the emancipation. The third step is obtaining a hearing date. Depending on the judge, the hearing date could be set for a period of as little as seven days after filing the petition. In most cases, notice of the hearing date must be provided to both parents of the minor, to the minor themselves, and to their tutor/ad litem. In some cases, publication of the notice in the relevant newspaper is also required. The fourth step is to attend the emancipation hearing. At this hearing, the minor must present evidence in support of emancipating, including testimony from the minor himself, and to convince a judge the minor has enough knowledge, experience, and maturity to make their own decisions. The judge will weigh evidence from both sides and may review additional evidence, such as any published or unpublished opinions related to previous spending patterns or other challenges. If the judge is satisfied with the evidence, though, they will sign the order of emancipation and the process will be over.
Rights and Responsibilities of an Emancipated Minor
In Louisiana, emancipated minors (also known as the "emancipated person") have the right to make their own decisions and be held legally responsible for those decisions. Under Louisiana Civil Code Article 297, an emancipated minor is "fully able to act for himself in all matters, except that he is subject to the parental authority vested by law in a person or the powers of a tutor." Thus, an emancipated minor has the right to enter into contracts, manage his or her own money, sue and be sued, and generally exercise the same legal rights and responsibilities as an adult.
Financial independence is an important aspect that distinguishes an emancipated minor from a minor under parental authority. An emancipated minor is free to buy and sell property, including immovables (real property), without needing parental consent , which would otherwise be required under Article 367 of the Louisiana Civil Code. The emancipation also applies to donations between spouses and interspousal agreements pursuant to Article 2316 of the Louisiana Civil Code.
In general, acts of an emancipated minor do not require consent or ratification by parents or tutors unless it is prohibited by law, such as contracts to give a donation or for a payment exceeding $500 (Article 298 of the Civil Code) or for the lease of an immovable property for a period greater than 10 years. However, emancipated minors remain subject to the provisions of certain laws that restrict minors until they reach the age of majority, such as the sale of immovable property (Article 2641 of the Civil Code), donations of immovables by and between spouses (Article 2634), and the reduction of donations in favor of children (Article 1642). In addition, contracts of an unemancipated minor are subject to possible rescission by the child before they reach the age of majority. An emancipated minor does not have this capacity.
The Legal Repercussions and Effects
Like most things in life, emancipation is not without its risks. Gaining independence from your parents is a major turning point, but it comes with some strings attached. Here are some of the legal implications and consequences of emancipation in Louisiana:
Schooling: While a minor’s parents or guardians are required to enroll them in school and pay for schooling, these obligations are no longer applicable once emancipation is official. As an emancipated minor, you are solely responsible for all educational expenses and enrollment requirements. Then again, if you are not a high school graduate, you should still consider schooling for the purpose of career opportunities later in life.
Contracting: As a minor, you could only sign a contract if it approved by a parent or guardian. After emancipation, there are few restrictions on your contracting abilities. However, be advised that certain contracts, such as real estate mortgage contracts, require a minor to be at least 18 years of age in order for the minor to enter into the contract.
Employment: Once emancipated, you are no longer considered a minor and can work how you choose. Yet, emancipation does not mean that you are entitled to work. In the same way that parents could previously deny you permission to work until a certain age, so too can emancipation be denied. To be more specific, parents or guardians still have the power to prevent you from working in certain conditions that could be harmful to your health, morals or wellbeing.
Finances: In relation to financial liabilities, other than contracts, emancipation does not change the fact that you are no longer eligible to have your parent(s) withdraw you from financial obligations. Essentially, this means that you, as an emancipated minor, must be prepared to pay for any and all financial liabilities that your parents previously paid on your behalf.
Options other than Emancipation
A minor may seek to establish guardianship over themselves and/or property (movable or immovable) belonging to them. This type of guardianship is adjudicated by a court. The court, however, must find that the minor is not subjected to parental control nor is the minor unable to care for themselves and/or property because of incapacity, or is fourteen years of age. In the event that the minor cannot establish guardianship, the court can make a custody ruling in favor of the minor and the minor’s property. Parents often grant full power of attorney to children. While this acting on behalf of an adult can be effective, it is not the same as emancipation. The difference being that guardian and custody is exercised by the parent to grant a minor full control of their legal affairs . Parents alone do not have the power to emancipate students. Parents may allow for emancipation in the form of simply dissolving their legal framework of responsibility for the minor. Such a determination may be made by mutual oral agreement between the parent and minor child. Any emancipation taking place without a prescriptive writing can be revoked by the parent by any means available. Parental consent is thus an alternative to emancipation. Emancipation, unlike parental consent, has a standard of capacity that must be met by the minor. Consent requires only the agreement of a parent despite the inability of the minor to demonstrate sufficient maturity. Parental consent is the cheapest option available to a minor and can be done without the approval of the court or without making special allowances for the minor.