What is Emancipation?
In the legal context, emancipation is a formal process through which a court recognizes a minor’s ability to be responsible for his or her own welfare and grants that minor freedom from his or her parents’ care, custody, and control. Under North Carolina General Statute § 7B-350 a minor can petition the court to be emancipated if they are older than 16 years old and are at least one of the following: (1) married; (2) serving in the United States Armed Forces; (3) generally or lawfully conducting their business affairs; (4) able to support themselves by their own labor or skill; (5) generally or lawfully managing their own money; or (6) attending or having completed a program of high school instruction.
There are two basic reasons why a minor might want to seek emancipation from his or her parents. First, the minor may be in an unsafe home environment and wants to leave their home or create more independence from their parents. Second, the minor may want to make their own decisions (for example, about education or health decisions) without parental interference. Each of these reasons makes sense from the minor’s perspective but can cause concern for the parents . This is the heart of why the petition to establish emancipation must be filed with the court. Accordingly, these proceedings are traditionally handled by the juvenile court. As such, the main benefit to the minor of being emancipated is of course gaining personal independence, control, and freedom. However, this is not without cost. An emancipated minor is obligated to support himself or herself which includes paying for food, shelter, clothing, learning expenses, caring for injuries, and debts. Similar to adults who are raising children and work hard to provide for their families, an emancipated minor takes on the same responsibilities and burdens as any other adult. Furthermore, once a minor is emancipated from a parent, that parent’s legal obligation to support the minor ends. For the parent, this relief is welcomed. For the juvenile court, they continue to oversee the emancipated minor like any other adult. An emancipated minor can enter into binding contracts, sue or be sued, incur debts, and make decisions that will have the most impact on their life. While emancipation is a life-changing decision that brings many benefits, it does not come without consequences.
NC Laws on Emancipation Explained
According to the North Carolina Emancipation of Minors Act of 1977, a minor may be emancipated if they can show that they are over the age of 16 years, that they are or have been married, or if a parent banishes them from home without just cause.
The law states that emancipation is the termination of parental rights, and therefore the child has no further legal requirement to obey their parents. While federal law requires parental permission for a youth to work, join the military, or get a driver’s license, the state law does not recognize a parental right to their child’s earnings. An emancipation order allows a minor to act on their own behalf as a legal adult.
In order to be eligible, a minor must file a petition in the district court in which they reside, and a hearing date must be set. At the time of the hearing, the district court must find that the minor can be self-sufficient, and that their best interests are served by granting them emancipation. Once granted, minor has the legal status of an adult and will have the ability to sign legal documents, enter contracts, consent to medical care, buy and sell real estate, enter into business agreements, etc.
Filing for Emancipation in North Carolina
The process of filing for emancipation in North Carolina involves a few distinct steps, starting with the minor filing for emancipation in the general court of justice. The petition must be completed by the minor seeking emancipation, and the forms are available on the website of the Administrative Office of the Courts (AOC). When completing the petition, the minor must attach the following additional documents: The petition must be filed in the minor’s county of residence. If the minor is homeless, the case will be heard in the county in which the last known address is located. Additionally, the requirement of residence does not apply if the minor’s residence is unknown or if it cannot be determined.
Once all documents are collected and completed, the proposed order must be signed before a notary public or another authorized official. The proposed order must then be filed with the court, along with the petition, the required documents and the order. All documents should be filed at least ten days prior to the hearing. After filing, an application must be filed with the court for service of jurisdictional process on interested parties. Thereafter, a hearing date will be set by the clerk of court. Once all documents have been reviewed, a time will be set for the appointment of a guardian ad litem. If there is sufficient basis for the case and the petitioner is eligible, the court will appoint a guardian ad litem. The next step involves selecting a date for the hearing with the assigned attorney.
At least two weeks prior to the hearing, a notice must be given to all parents, grandparents, guardians and legal custodians of the minor that the hearing will occur. Notice must also be given to all individuals who have a direct interest in the case. This notice is sent via certified mail and should include the location of the hearing. At the end of the petition, there is a place for the minor to list people to whom notice should be provided. This is known as the "Certificate of Service." In the event that the parent is not available, notice may also be given to persons with whom the petitioning minor previously resided. If the minor does not know where a parent is located, no notice is required. If there is concern related to domestic violence, the notice may also be dispensed with.
From the time that the forms are filed until the case goes to hearing, it is possible to anticipate that four months will elapse. The hearing will occur at least 15 days after the hearing notice is issued. The case will be heard by a circuit court judge, and if the judge feels that the minor understands what it means to be emancipated, then the court may issue an order. At that point, the minor is considered to be legally free from the custody of his or her parents.
Emancipated Minors: Rights and Responsibilities
Once a minor has been emancipated, he or she gains the majority of legal rights, similar to an adult. They are considered an individual separate and apart from their parents. Emancipation thus relieves the parents of their general duties of care and support. However, legal age limit laws must still be observed. There are certain responsibilities which minors must assume before the age of eighteen, such as the criminal code and marriage. For instance, emancipation does not authorize a minor to marry without parental consent, and they are still subject to the various age limit laws for drinking alcohol, working, etc. Emancipation also does not diminish the right of support or care owed to the minor. The parents can still exercise the right of control, discipline, and guide the minor. At the same time, however, they cannot interfere in the personal choice of the minor nor deprive them of privacy. Essentially, once a minor is granted emancipation, he or she becomes a new person, with new rights and responsibilities. If an emancipated minor chooses to live with his or her parents after emancipation, then that is a legal contract between the parties. This does not negate the emancipation, rather it is similar to an adult renting an apartment with a roommate.
An emancipated minor has the right to enter into a commercial contract, such as lease, because they are now legally considered an adult. That being said, however , a minor may have the right to avoid their end of the deal if they have something they can sue for against the other party. For example, if the minor fails to pay the rent after six months but a month into it has filed suit against the landlord (and lost), the landlord may not be able to hold the minor to that lease provision. On the other end, of course, in the event that a minor breaches a contract, the minor may be liable for personal loss. In some cases, the parents would be liable for the minor if the minor’s actions were tortuous, such as trespassing or exposing them to criminal activity. They would be liable only if the parents had actual knowledge and gave consent. As a rule, almost any right, duty, tool, or other arrangement, can be contracted between the parties as long as it does not contradict NC law or violate public policy. The minor can sue for property that was omitted from the settlement agreement. If the parents have diminished the property of the minor, then that minor can sue the parents for the proceeds or property that was wasted. This statute allows the minor to keep under the court’s care after the emancipation. The minor can ask the court to set aside their emancipation, but the court will not do so unless either the parents are in a position to provide the minor with what he or she needs, or new circumstances exist to warrant the reversal, it is in the best interest of the minor, and it is an abuse of discretion of the family court.
Common Issues and Considerations
Along with the practical challenges of completing an emancipation petition, there are emotional challenges, as well. After a minor is emancipated, a new transition begins. Depending on what type of emancipation the minor has sought, the minor may need to learn how to file taxes and get a bank account in his or her name. Additionally, the minor must become financially responsible for any debts that are accrued (although they are now paying with their own money, rather than through parental support). Understanding some of these financial realities can help a minor make informed choices as they prepare for this next step.
From the parents’ or guardians’ perspective, the practical and emotional challenges of a minor’s emancipation can also be stressful. Parents still have an obligation to financially assist their child (and the law may hold parents accountable should a minor need public assistance). If a minor applies to be emancipated, it is best to talk to the minor about the reasons for the application prior to the court hearing, especially if he or she resides with their parents. While this may be challenging to do, it gives both the minor and the parents an opportunity to discuss the application prior to court. It also may be a good idea for parents to discuss the emancipation petition with a lawyer. The family may want to discuss whether the minor has sufficient financial resources to begin their post-emancipation life. In most cases, the courts will not consider that a minor applying for emancipation should have to justify their reasoning to the court. The parties may want to consider discussing the issue in front of the judge privately instead of in an open court setting. Writing a statement to the minor in front of the judge explaining the parents’ position on the application may be another option.
The minor and their parents or guardians may also want to reach out to professionals who can assist with issues relating to housing, healthcare, and education so that should the minor be emancipated, there are resources available to them.
Legal Support and Resources
For those seeking legal advice or support regarding the process of becoming emancipated in North Carolina, there are numerous avenues through which assistance can be obtained. Those interested in the process are encouraged to consult with a licensed North Carolina attorney before filing their petition for emancipation. Even though it is not legally required that a minor discuss his or her situation with an attorney before filing, any emancipation action would benefit highly from advance consultation.
In some instances, a minor might not be able to afford attorney’s fees and cannot find a family member or friend who is willing to represent them at no cost. Thankfully, there are several options available for receiving help. One option for obtaining legal assistance is to visit North Carolina Legal Aid’s website, www.legalaidnc.org. Legal Aid’s site can help minors connect with pro bono attorneys, who volunteer their time to provide free representation in legal matters, or find another organization that may be able to represent the minor for free. Another similar organization, Legal Aid of North Carolina, can also connect eligible individuals with pro bono attorneys. A full list of pro bono organizations can be found on the North Carolina Bar Associations website at www.ncbar.gov.
Another potential legal resource for a minor looking to become emancipated is the North Carolina Pro Bono Resource Center , which can be accessed online at www.probono.ncbar.gov. By filling out a request form on the website, pro bono services can be located for individuals who may qualify. The Carolina Justice Center also provides pro bono assistance by referring potential clients to attorneys who will work toward a solution.
Finally, it is important to note that any actions that occur during the legal emancipation process will not be free of charge. For example, if a court hearing becomes necessary, then filing costs and potential attorney fees could add up. There are likely pro bono options available, but it is wise to budget ahead and be ready for any cost that may come to pass.
Whether filing a petition for emancipation as a minor or seeking freedom for another individual, finding legal advice and support is highly recommended. Attorneys who represent the minor, their parents, or the guardians can provide valuable insight into what lies ahead in the legal process, reducing the chances of unexpected hurdles along the way. Emancipation is not necessarily a complex procedure, but having sound legal advice and guidance can go a long way in saving time and money.