What Is Emancipation?
According to Georgia and Alabama law, emancipation means "freedom, from the authority of a parent." Little v. Berry, 185 Ga. 190, 194 (1937); Williamson v. Cornell, 232 Ala. 177 (1933). The state of being free of any parent or guardian, or both, their authority and control in their own affairs, renders them capable of managing their own affairs, which is the legal condition of a son or daughter after attaining majority, or of a married woman, as in a few states, of any person of full age. Black’s Law Dictionary, Emancipation, 881 (6th ed. 1990) . In most cases, it requires that the child be a minor, under 18 years of age, have sufficient social and financial independence, maturity to assume the responsibilities of adulthood. In Georgia, it requires that the child be 16 years of age or older and voluntarily leave the custodian’s home, without the permission of the parent or guardian and parent or guardian agree to not allow the child to re-enter the home. O.C.G.A. §15-11-220(a)(1)-(2). Emancipation does not release a parent from a child support obligation; however, emancipation can affect the child support obligation.
Georgia Minimum Age for Emancipation
A minor in Georgia can seek emancipation under OCGA § 15-11-260. Under this Georgia law, a minor generally may petition the court to have his or her disability of minority removed. An action for emancipation may be brought by the minor himself or herself or by a parent with physical custody of the minor, a parent in whose home the minor resides, or a guardian with the care and custody of the minor.
OCGA § 15-11-260 also says that if a request for emancipation is made by a minor 16 years of age or older, the court must then appoint an attorney to represent the minor and issue an order requiring the Attorney General to represent the state in any proceedings. The court will order that the office of the Attorney General provide the state’s representation only if the state of Georgia has a substantial interest in the matter. Emancipation does not automatically relieve a minor of his duty of support to his parents pursuant to OCGA § 19-7-1.
The minor will have to prove the following conditions exist before the court will grant the request for emancipation: An order of the court of emancipation cannot be entered until after the rights of the parents and guardians are considered.
How to Become Emancipated
The process of filing for emancipation in Georgia varies depending on the individual circumstances of the minor. However, in most situations, the petition will generally need to be filed in the juvenile court, such as Cobb County Juvenile Court, which has jurisdiction over minors in the county in which they reside.
The first step in this process is to fill out a Petition to Declare Emancipated Minor Status. This document will include the minor’s name, address and date of birth; the parents’ names and addresses; and information about the minor’s ability to support not only himself or herself, but any dependents they already have—i.e., children.
When the minor goes through this legal process, the Juvenile Court will appoint a guardian ad litem to the case. Guardian ad litem is the Latin term for "guardian of the lawsuit," which refers to a person appointed to protect the interests of a minor child. Once appointed, this person will have to communicate all of the rights and obligations of the minor, as well as what emancipation will entail for all of her circumstances. In seeking emancipation, the burden of proof will be placed on both the minor and his or her guardian ad litem to show the court that the emancipation is in the best interests of the minor.
If the petition is not contested, the court can accept the petition without a hearing. If there is a contest, the court will set a hearing. If the minor files the petition and he or she is still living at home with their parents, the court may require both parents to appear for the hearing or file a waiver of their right to attend.
If both parents are deceased, the minor will have to provide alternative proof of emancipation, which could include an attestation from probate court or a letter that proves the absence of parents to the satisfaction of the juvenile court. Everything is completely up to the judge’s discretion, though, so it is important that anyone considering emancipation of a child consult closely with a qualified family lawyer to have the best chance possible of being approved.
Emancipation Rights and Responsibilities
Upon emancipation, a minor is granted a number of specific rights that are not commonly available to minors under the age of 18. Some of these rights include the ability to enter into and terminate contracts, open checking and savings accounts, apply for loans, and file their own tax returns. These powers are significant because, under the age of 18 most contacts cannot be validly entered into and contracts entered into are automatically voidable upon reaching the age of majority (18). Thus, emancipation is similar to reaching the age of majority in that it grants a minor a somewhat larger "power of attorney" over his or her own life.
However, a minor’s emancipation also entails numerous responsibilities as well. These responsibilities primarily manifest themselves in the form of financial responsibilities. The most notable of these financial burdens is the payment of taxes for the year after emancipation. The recent rise in the price of education has made obtaining a college education more fraught with peril for minors and their families. The Internal Revenue Service recently announced a proposal that would allow parents to take tax credits of up to $4000 for their contribution to their child’s college tuition. However, one of the requirements for this credit to take place is that the child must attain the age of 17 before year’s end. In other words, a 16 year old who goes into college straight out of high school will not have to pay income tax his or her first year in college. A 16 year old who is emancipated will have to pay taxes, regardless of whether they are attending college. Emancipation can also create tax complications if the minor is working and is subject to the federal income tax.
Difficulties of Emancipation
Across the United States, emancipation is increasingly rare. While self-help guides may suggest that an adolescent and a parent sign an emancipation contract, such contracts are legally worthless in Georgia. Georgia, like most states, requires a court order for a parent or adolescent to take advantage of the benefits of emancipation. The Georgia legislature has seen fit to place several restrictions on who can file the Petition for Emancipation.
Petitions for Emancipation can only be filed for most unemancipated adolescents age sixteen (16) or older who live in the local government where they file their Petition. Local governments are counties, so an adolescent must file the Petition for Emancipation in the county where he or she resides. The law specifically prohibits a court from granting a Petition for Emancipation if the local government does not have jurisdiction over both the emancipated minor and the case, and the condition and circumstances of the would-be-emancipated minor are such that the minor does not understand the nature and consequences of his or her action in filing the Petition . O.C.G.A. §15-11-310. For all of these reasons, most adolescents do not choose to seek an order of emancipation.
Adolescents shoved into adulthood without the benefits of emancipation face severe financial disadvantages. Studies show that early emigration from the family home correlates with increased poverty, social alienation, and criminalization later in life. Emancipated adolescents tend to exercise legal rights poorly and have high rates of depression, suicidal thoughts, and drug use. In Georgia, at least 40% of teens trying to become adults early end up homeless on the street, and almost 10% become sex workers to make ends meet. Without granting illegal emancipation, Georgia courts cannot relieve parents of their financial obligations to their children.
Parental Rights and Emancipation
While a minor is emancipated, and for as long as the emancipation lasts, a parents’ rights and duties are relieved but not terminated by that emancipation. A parent or a legal guardian may argue against the emancipation of a child and may have standing in a proceeding under O.C.G.A. § 15-11-771 (a) (3). This allows the parent or legal guardian "to petition the court for modification of the order of emancipation." However, when the above is considered, a parent who is contesting an emancipation order must understand that their parental rights are not terminated, and they do not lose their parental rights simply because it is allowed for the emancipation of a minor child.
Effects of Emancipation on Child Support Obligations
Impact of Emancipation on Child Support in Georgia
If both parents or legal guardians can agree on how emancipation will impact child support, the Child Support Guidelines can be used to facilitate that agreement. If the parties are unable to agree and seek third party intervention, however, the child support implications of the child’s emancipation are governed by Georgia law, which can be very complex. The legal consequences of the termination of the parent/child relationship in Georgia differ depending on whether the parent or guardian who exercises custody has been emancipated. When a child has been emancipated prior to reaching the age of 18 or otherwise becomes legally emancipated by virtue of subsequent events or conditions the obligor’s obligations under the guidelines concerning the child may be abated or altered accordingly. The power of an emancipated child or parent or guardian who has gained emancipation from powers of the other parent or guardian to abate or alter the rights and liabilities of both the obligor parent and the emancipated child depends in some measure upon who was responsible for the situation that led to emancipation. Thus, in some situations the parental right to modify or terminate the obligation of a parent or guardian to pay child support is abated or altered when (1) the parent or guardian who has gained emancipation is at fault for having done so; (2) the child is at fault (such as through voluntary illegal conduct); or (3) both the emancipated child and the obligated parent or legal guardian are at fault. Georgia will not enforce court orders that violate basic constitutional guarantees, including due process. Under Georgia law, parents may not contract away their child’s future rights because it is against the child’s best interest to do so. For this reason, child support obligations cannot continue past the legal age of emancipation, even without a specific finding that the child will not attend college. Upon the legal emancipation of a child, the court will no longer have the authority to require post emancipation support payments (i.e. child support). It is important to note that a state may not apply its own local law but must apply the Uniform Child Custody Act or the Uniform Reciprocal Enforcement of Support Act.
Lawyers and Other Resources
In addition to the many resources available through public institutions, Georgia has local advocacy groups, a variety of law schools with clinics, and private lawyers who can provide assistance for minors facing emancipation. The Georgia Legal Services Program is a private, not-for-profit law firm funded largely through the Legal Services Corporation, providing free civil legal assistance to low income families in 154 counties in Georgia. Their services are provided by both staff attorneys and by volunteer attorneys who handle cases for free or at a reduced hourly rate. The Atlanta Legal Aid Society also provides free civil legal aid to low-income residents of Barrow, Clayton, Cobb, Douglas, Fulton, Gwinnett, Henry, and Rockdale Counties, and places special emphasis on senior citizen legal services. Georgia Legal Aid provides information regarding obtaining legal support in every county of the State .
As well, promising students enrolled in law school may seek legal instruction and practical training while providing pro bono services to low-income communities at one of Georgia’s law school clinics.
In addition to Georgia Southern University in Statesboro, Mercer Law School has a Public Interest program that offers students the opportunity to study the law as it relates to low-income citizens, while providing pro bono representation and administrative assistance to low-income clients through their Legal Clinics in Perry, Macon, and Savannah. Emory University and Georgia State University law clinics also have programs working pro bono with low-income populations in their local communities. Some communities in Georgia may also provide client counseling centers staffed by members of the State Bar of Georgia to provide pro bono legal counsel and other services to low income individuals.