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Emancipation
by: Iowa Legal Aid
Jenny is sixteen years old. She has always been a good kid who does well in school and has a lot of friends. She has always hoped to go to college when she graduates. But lately Jenny's friends and teachers have been worrying about her. She has been missing a lot of time at school.
Recently she came to school with a bruise on her cheek. She told her friends and teachers that she slipped and fell at her part-time job, but she later told her best friend, Amy, that things have gotten really bad at home.
Her parents are abusing drugs and alcohol. She has been keeping the house in order and cooking all the family meals. She works extra hours at her part-time job to earn money to help pay the household bills. Her parents are fighting more and more, usually late at night. She has asked them to get counseling, but they have refused and told her it is not her problem.
The most recent fight between her parents was the worst. She woke up and heard lots of screaming and objects being broken. When she tried to calm her parents down they got mad at her. She ended up getting hit in the face by a cell phone thrown by her mother. She told her parents the next day that she wanted to leave home unless they stopped using drugs and stopped fighting. Her parents responded by kicking her out of the house.
Jenny asked Amy if she could stay with Amy's family. She would pay all her expenses from her part-time job and Amy's parents would not have to worry about her since she was capable of making her own decisions. She cares for her parents, but she just cannot live with them anymore. She wants to live on her own.
Jenny asked Amy if she could stay with Amy's family. She would pay all her expenses from her part-time job and Amy's parents would not have to worry about her since she was capable of making her own decisions. She cares for her parents, but she just cannot live with them anymore. She wants to live on her own.
Minors on their own - it can happen in many ways. Perhaps it is due to an abusive family life, an absent parent, or a rebellious teenager. Either way, problems can arise quickly. Can a minor rent an apartment? What about buying a car? Can a minor secure a loan to make an expensive purchase?
The answers to these questions in the state of Iowa have not always been clear. Minors are allowed to sign contracts for necessities, but it is sometimes difficult to determine what is a "necessity." Housing would seem to be a clear necessity -but what about purchasing a car for work?
Generally, a minor cannot make the same decisions as an adult until he or she reaches what is known as the "age of majority." It is at this age that a minor is considered to be legally emancipated, or in other words, that a minor is considered to be an adult. In Iowa, this is the age of eighteen. Most minors are not ready to make decisions for themselves before their eighteenth birthday. In the past, not being legally emancipated presented many problems for minors who either wanted to be on their own or had to be due to their family situations. They were ready to live and act like adults, but in the eyes of the law, they were still children.
Today, the laws regarding emancipation have changed in Iowa. For the first time, there are statutes in place that clearly describe how a minor can be emancipated before he or she turns eighteen. This resource looks at the new law and explains who can use it.
What is emancipation?
Emancipation is the term used to describe when a minor is no longer legally considered to be a child and is recognized as an adult. Once a minor is emancipated, he or she can make many of the same decisions as an adult. This means that the minor can decide where he or she will live, where he or she will work, and the minor can also be held liable for any contracts that he or she signs?such as a rental agreement or loan document.
Why would someone want emancipation?
Emancipation for a minor is most common where there has been a breakdown in the relationship between a parent and a child. The breakdown will need to be serious enough that it is clearly in the child's best interest to be on his or her own. In most cases, emancipation would likely not be appropriate when there are just minor disputes between a parent and a child, such as arguments about curfews and household chores.
Who can file for emancipation?
Several people can file for emancipation:
- A child's parent or guardian can file;
- The court may file by its own motion; or
- A child can file for emancipation, but the child must be:
- (1) at least 16 years old,
- (2) an Iowa resident, and
- (3) not in the care, custody, or control of the state.
How do I file for emancipation?
To start the process, paperwork must be filed with the court. This paperwork is called a petition and there is a fee to file it with the court. A petition must include:
- The minor's name, mailing address, and date of birth.
- The name and mailing address of the child's parents and/or guardian.
- Facts to support emancipation. For instance, the child could show the ability to provide his or her own financial support himself. The ability to manage personal affairs without the help of a parent could be shown.
- Finally, at least one of three factors need to exist for the court to hear the matter:
- The child has been living on his or her own for at least 3 months;
- The child feels the parents' or guardians' home is unsafe or not healthy; or
- The parents and child agree to the emancipation. The agreement must be written and notarized for the court to consider it valid. Banks, libraries and courthouses usually notarize documents.
What if I cannot afford the filing fees?
If you cannot afford the filing fees, the judge, county attorney, or juvenile court officer may waive the filing fees for your paperwork. If they do not waive the fees, you can ask the court to allow you to file in forma pauperis. You tell the court you are unable to pay by filing an affidavit. An affidavit is a sworn promise that what you are saying is true. Also, you could provide the court with financial documents to help show you are unable to pay. The court will decide whether or not to waive the fees.
What happens after filing the petition?
Within 90 days after filing the petition, the court will have a hearing. A child may have a lawyer, but that is not required. The court may also appoint a guardian ad litem for the child. The guardian ad litem is a court-appointed attorney who will represent the child's best interests.
Before the hearing, the court will explore other ways to strengthen the family relationship. The court may decide prior to the hearing to stop the emancipation process, and refer the parties to mediation. Mediation is when a court appoints a third party to oversee and assist the individual parties in reaching an agreement. Also, if the child's parents object to the petition, the parents and child will go to mediation unless the court finds mediation not to be in the child's best interests. If mediation results in an agreement, the emancipation process will end. Almost anything can be agreed upon in mediation. For example, parents could agree to stop drinking or taking drugs, get counseling, or they might agree to refrain from going to the casino or racetrack. The court may also ask the Department of Human Services to investigate any allegations of child abuse made in the petition. The court will order the Department of Human Services to write and file a report.
Also, if the court feels that there are serious problems in the relationship between a child and his or her parents and that the family would benefit from court assistance, the court may on its own stop the emancipation proceeding and start another proceeding called a Family In Need of Assistance (FINA) action. In order for these proceedings to begin, three things must be present:
- There must be a breakdown down in the family relationship;
- One of the family members has sought services, such as counseling or therapy, to maintain the family; and
- The court has the ability to provide services from which the family could benefit.
If these three conditions are met, the court will search for ways to strengthen the relationship either through counseling or other court orders.
A child can ask to be placed in a foster home or in a nonsecure facility in a FINA action. The court can only place a child into these facilities if the child requests it. The court cannot place the child into a state training school. A court order for a child to be placed in a foster home or a nonsecure facility will also address the change from foster care to adulthood.
If a child is found in contempt of any court orders?for example, perhaps by not attending counseling or therapy?the child may be punished by a work assignment to benefit the state. In addition to this, the court may also transfer legal custody to another relative, an agency, or the Department of Human Services. The court can also order other actions for the family, such as the supervision of the child and the parent by the Department of Human Services.
What does a court consider in an emancipation?
In order for a child to be emancipated, the court must find by clear and convincing evidence that emancipation would be in the child's best interests. This means that a judge must think that it is more likely than not that emancipation is the best alternative for the child. The court will consider all relevant factors when making this decision. One factor the court may look at is whether the child understands the risks and consequences of emancipation. Other factors the court may consider are whether the child can be financially self-supporting; the child's education level; whether the child has a criminal record; what the child wants; and what the parents recommend.
What happens if emancipation is granted?
If a child is emancipated, the court order will have a similar effect as the child reaching the age of 18. The child will now have rights which he or she did not have before. The child can now sue, be sued and enter into a legal contract. The child can pursue housing on his or her own or take out loans for purchases if he or she qualifies. Additionally, the child can now consent to healthcare. However, becoming emancipated does not give a minor all the rights of adulthood. For example, if the child is younger than 18, he or she will not be able to vote or buy tobacco. Also, the compulsory school attendance laws in Iowa still apply to an emancipated minor. This means that if a child turns 16 before September 15th of the school year, he or she can drop out of school, but if the child turns 16 on or after September 15, he or she must finish the school year before dropping out.
Once a child is legally emancipated, the responsibilities of a parent for a child change greatly. The minor's parents are no longer responsible for providing care for the child, nor are they responsible for any debts the minor acquires or any trouble that the minor gets into. A parent will no longer be required to pay child support for a child, and a parent will no longer have the obligation to provide medical support for the child unless the court deems it necessary. Also, the parent will not have a right to the emancipated child's property.
In conclusion, while Iowa laws now provide a much clearer path for a minor to become legally emancipated before reaching the age of eighteen, becoming legally emancipated remains a very serious and potentially difficult action for a young person to take. For every benefit a minor may obtain by being emancipated, there are also the risks and permanent consequences of being an adult that need to be considered. The legal requirements for becoming emancipated under Iowa's new law address these issues, including some built-in measures for judges to attempt to preserve families and avoid emancipation where this is possible. Legal emancipation for a minor is now an option for a young person in Iowa, but it is an option that Iowa judges are likely to examine very closely before granting.
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