Defining Emancipation
Today, the main catalyst for this post is my new puppy, Beau. Majority of the time during my daily routine, I am in the office working and do not spend much time with Beau while he is awake. However, on this particular work day, Beau was not having any part of his best friend being away from him. The moment that I put on my shoes, Beau knew he was about to get left behind and whined as if he was a small child saying "Mommy, don’t leave me." Well, it suffices to say that I did leave Beau behind at the house. Upon my return home, his eyes were slightly damp. Perhaps he realized that his whining would not force any further action…perhaps not. However, the memory that I will always take away from this experience, is that Beau will not let any person or thing go unnoticed or unprevented from the action that he wishes to happen. I found that this memory would be quite applicable to this Fidelity and Surety Law Blog, and in particular, to the post that I am writing right now.
What exactly is emancipation? In its most basic form, emancipation happens, "when a parent relinquishes parental control or when a child leaves or disables parental control (as by reaching the age of majority)."
In Kentucky, emancipation and the laws surrounding it are governed by KRS 402.045. KRS 402.045 states that:
(1) Until a child reaches eighteen (18) years of age , he shall be considered within minority in all cases. He shall be deemed a free agent upon attaining eighteen (18) years of age; and the disabilities of nonage shall cease. (2) The parents or kin of a minor child who becomes a party to a marriage contract are barred from disabling the wife or husband from the right of dower or other interest in the estate of the other. (3) This section shall not be construed to affect the purchase of veils, licenses, or other privileges.
In Kentucky, the general concept of emancipation does not refer to cutting off the offspring from the parent’s financial support as I had unfortunately assumed. Rather, it refers to the parent no longer being legally responsible for the (often minor) child. In fact, the minor child can petition to become emancipated if they can prove to the court that the child will be able to support themselves as a result of the parent(s) not providing and assuring financial security.
I will restate that KRS 402.045 states that while a child is under the age of 18, they shall be within the course of their minority. In other words, the age of majority in Kentucky is 18. Therefore, as previously stated, emancipation releases the minor child from the obligations of financial support by the parent(s). However, the court will not allow this release of financial support, unless the minor petitions the court and proves to the court, that the minor can support themselves financially without the parent(s) providing and assuring financial security.
In other words, nothing can be done about financial support of the child until the child has reached the age of majority. Only then can the child petition to become emancipated from their parents.
Emancipation in Kentucky: An Overview
Kentucky, like the other states, has specific laws regarding emancipation. There are, however, some aspects that are unique to Kentucky in comparison to other states.
Pursuant to K.R.S. § 400.070, an emancipated minor is a "married person, a member of the armed services of the United States, or a person over eighteen (18) years of age." According to § 400.030, one may also be "emancipated by general consent of the parents of such minor."
Married individuals are considered emancipated with very few exceptions. A minor does not lose his or her legal status until an official marriage license is issued. The minor is officially emancipated when the marriage solemnized by an authorized person is entered into registries of vital statistics and the county clerk’s office.
Like many other states, merely reaching the age of majority, age 18, is not considered enough for an individual to become emancipated. The high court of Kentucky specifically held that "an emancipation does not result when [a minor’s] parents relinquish all control over her, provide her with a separate residence, and allow her to voluntarily engage in conduct contrary to their wishes, so long as they have not consented to her conduct." Rogers v. Rogers, 468 S.W.2d 289 (Ky. 1971). Merely allowing an unemancipated minor to be "in charge of her own business affairs" is not sufficient for emancipation. Such is the case when a guardian for the minor is appointed and no orders of the probate court have been entered. Smith v. Smith, 353 S.W.2d 573 (Ky. 1961).
A circuit court may declare a minor emancipated "upon finding that he, in fact, has become a married person or member of the armed services of the United States or that his parents have consented generally to the begging of any act, course of conduct, or other things." This is codified in K.R.S. § 400.020. Parents may also petition a circuit court to declare their child emancipated in those situations where mere consent is not sufficient. § 400.025.
Recently the state high court addressed the issue of parental consent and emancipation in the matter of C.J.C., 350 S.W.3d 864 (Ky. 2011). The court held that the marital status of a minor provides additional insight into the broader issue of emancipation. Yet, the fact that a minor is married does not automatically imply parental consent. It simply provides the minor with a "greater degree of independence and stability," according to the court. Any decision furthering the emancipation process would, necessarily, be more exacting. The circuit court would need to determine, on a case-by-case basis, whether parental consent of general consent exists for purposes of emancipation.
Who Qualifies for Emancipation in the Commonwealth of Kentucky
According to KRS 610.250(1) in order to qualify for emancipation under Kentucky law, a minor must be either officially at least 14 years of age or if there are special circumstances, any other minor who has been a prior victim of human trafficking as defined and whose emancipation is recommended by the Kentucky Department of Fish and Family Services.
In general, in order for you to be an emancipated minor, you must fit into one of the categories above. The emancipation request can be by the minor or by the minor’s parent. If you are under second year undergraduate education, you must also provide proof that you are admitted to the institution. The minor must be a resident of Kentucky for the 6 months immediately preceding the petition’s filing; and local court jurisdiction will be established in the county where the minor resides.
If the petition is being filed by the minor, a copy of the petition is served on both parents or legal guardians.
The Procedure for Emancipation in the Commonwealth
The process of emancipation in Kentucky occurs when a minor, defined as a person who is under the age of 18, becomes a legal adult having the full rights of an individual of that age. The emancipation process in Kentucky empowers a minor by releasing them from the control of their parents, who then are not allowed to make decisions for them. The step-by-step process of emancipation is provided below, and each step must be followed to receive a court order approving emancipation, which then allows the minor to obtain an official emancipation certificate.
The first step in this process is petitioning to the Kentucky court system that is located within the judicial circuit in which the minor resides. The minor files a petition with the court, which is a form that is provided on the Kentucky judiciary website. Only a minor at least 17 years of age can file such a petition, and no one may file it for them, as their age is what actually matters and not their maturity level in the eyes of the court. The form requires that the minor state that emancipation would be in their best interest, and they must state their date of birth and why emancipation is necessary. The court then sets a hearing, although it could take several months for the hearing to be scheduled.
Kentucky law requires that the minor give their parent or parents at least 30 days’ notice of this hearing date so that the parents can also attend and provide testimony at the court hearing. The minor must serve notice to their parents, although if they cannot be located for some reason, these 30 days of notice are forgiven. The right to petition the court for emancipation cannot be waived by the parent. The parent must have received proper notice of the hearing so that they are able to appear and present evidence on whether the request should be granted.
The minor can have a lawyer represent them in this matter, although being present during the hearing does not require a lawyer. The court makes a hearing available, and at that time, witnesses are allowed to speak on behalf of the minor and the parent. The court reviews any evidence that is available about the specific situation requested by the minor, and this is the reason why it is vital that the minor give at least thirty days’ notice to their parent or parents. When the circulation is clear, the court may approve the request for emancipation at that time, or it may postpone the hearing. If the court postpones the hearing then more notice is required by the parent of the continuance.
In these proceedings, the standard is not beyond a reasonable doubt but is instead by a preponderance of the evidence. So if the evidence weighed 51% in favor of emancipation, the court would approve the emancipation. At this point, the minor is legally recognized as an adult in the eyes of the law so that their parents’ control is ended. The court may grant a minor’s request for emancipation based on the following factors:
These factors are usually what is needed to be shown to prove that emancipation is in the best interest of the minor. If the court approves of the emancipation, then an emancipation certificate is issued to the minor by the court. Any time that the minor petitions to be heard during regular business hours, the court must grant the request, and the court must also appoint counsel to represent the minor if the court believes that it would be in the best interest of the minor.
Rights and Obligations after Emancipation
Once a minor is emancipated in Kentucky, they gain or are bestowed with several legal rights and responsibilities that differentiate them from regular minors. First and foremost, an emancipated minor has the right to earn or inherit income or property without interference from their parents or guardians. A regular minor that earns or receives property must have their parent or guardian consent to any major financial transaction involving that money or property.
In terms of issues involving health care, an emancipated minor can consent for themselves to medical care without parental consent. However, a regular minor must have a parent or guardian consent to certain forms of medical care, including mental health care (involving counseling or medications). For example, according to the Kentucky Board of Medical Licensure, a regular minor cannot consent to treatment for substance abuse or developmental or intellectual disabilities without their parent or guardian’s consent.
A big difference between a regular minor and an emancipated minor also involves contracts. An emancipated minor can enter into a contract and be legally bound under the terms of that contract. A regular minor who enters into a valid contract can avoid the contract upon reaching the age of majority or can void the contract if they can provide a sufficient reason for doing so . The law also provides an exception to contracts concerning necessities (such as food, clothing, shelter, health care, and education) in that a regular minor is legally bound to pay back the value of those needed goods and services.
While an emancipated minor can open a bank account without a parent or guardian’s permission, a regular minor may still need a cosigner until they reach the age of majority. An emancipated minor is legally responsible for their own taxes, while a regular minor is generally claimed as a dependent by their parent or guardian until they reach the age of majority or become financially independent.
Further, special education laws dictate that an emancipated minor can make their own decision concerning educational choices and be free from interference by their parents or guardians, while a regular minor may be subject to their parents’ or guardians’ decisions concerning educational choices. An emancipated minor also has the same rights to sue or be sued in Kentucky as an adult, while a regular minor relies on their parent or guardian to sue or be sued on their behalf, which can be challenging if their parent or guardian’s negligence or abuse underlies the cause of action.
Considerations and Challenges
While emancipation can be a straightforward process, it is not without its potential challenges. For one, the minor may prove to be unable to accept the responsibilities and obligations that come with the decree. With the independence of adulthood comes the corresponding duties. A minor who wishes to emancipate should make sure that he or she has realistic expectations about the outcome of the process. For example, it is critical to have certainty about living arrangements, finances and education prior to emancipation. Otherwise, the minor may find himself homeless or in a position where he must quit school to support himself.
Another consideration worth noting is the cost involved in the emancipation process. There will be fees to file petitions and provide notices. If the minor chooses to hire an attorney to represent him, legal fees will add to the expense. Further, for those minors considering emancipation before turning 18, issues can arise in securing employment or other needed benefits. A minor can apply for work after emancipation in Kentucky, but the employer must obtain legal proof of emancipation to ensure that the minor is old enough for employment. Additionally, some facilities may require proof of parent status before enrollment in recreational programs, educational opportunities, or otherwise. As such, individuals should anticipate a gap between emancipation and finally obtaining independence.
While emancipation in the Commonwealth may seem like an answer to many of a child’s dilemmas, it is not without its consequences. Minors should fully explore the legal implications of emancipation to determine if it is right for them.
Legal Aid and Community Support
Minors seeking emancipation in Kentucky have several legal assistance and community-based resources available to guide them through the process:
- Divorce and Family Lawyer: While hiring a lawyer is not a requirement for emancipation, seeking legal advice can keep the process organized and ensure that the minor stays on track through all of the steps. The Southern Kentucky Bar Association maintains a database of attorneys who can aid in determining the best options for gaining independence.
- Kentucky Legal Services: Kentucky Legal Services is a network of statewide non-profit organizations aiding low-income individuals with civil legal services. The organization offers free legal help to eligible individuals, including advice and assistance in preparing documents and representation in cases before administrative agencies and courts. Their website has useful information about emancipation under the law.
- Kentucky Child Advocates: Kentucky Laws require each county to have a child advocacy center that ensures children who are victims of a crime receive a range of therapeutic and counseling services while working with law enforcement agencies to ensure prevention of future crimes. They also represent kids in court. Family and juvenile lawyers specialize in representing minors in certain family law cases and have specific training to assist in their emancipation needs.
- Kentucky Youth Advocates: The Office of the Governor established the Kentucky Child Abuse and Neglect Prevention Board in 1986 to reduce child abuse and neglect in the Commonwealth. Kentucky Youth Advocates is the statewide organization dedicated to supporting and protecting at-risk children, youth and families. Their Board of Directors is charged with the responsibility of selecting, administering and evaluating grant programs. They are also responsible for a Statewide Child Fatality Review Team that works collaboratively to reduce child deaths across Kentucky.
With a vast array of resources at their disposal, minors may seek the legal assistance and emotional support they need to start life on their own.
Examples of Emancipation Cases in Kentucky
Case studies of individuals who have gone through the process of emancipation will provide a more concrete understanding of the requirements. In the 2013 case of Conley v. Drosos, 413 S.W.3d 242 (Ky. 2013), at the age of 17, a former Jefferson County student-athlete received a scholarship to study abroad. As part of the terms, she would live in London and complete half her courses abroad. The family also agreed that their daughter would carry a British passport and not a US passport. After a year made up of 16 hours of class each week, she returned home to Kentucky, where she asked the family court to terminate her minority status. At that time, she had graduated from her British school with four A levels in the sciences and spoken to universities in the United States and abroad. Because of her academic success, she was offered various scholarships; however, some programs had an age requirement. If she was compensated 100% for the opportunity, she would be barred from attending the colleges of her choice, which often had age limitations.
The lower court originally denied the petition, stating that it was impossible to terminate minority without another person(s) in the picture. However, a higher court explained that minors could be emancipated when they become financially independent . As such, ultimately, the emancipation was granted. In 2013, Henry appealed the petition to emancipation to the Circuit Court. The case summary states that the emancipation enables minors to live independently of their parents in a way that is financially responsible. As a result of gaining her minority status in Kentucky, she was able to receive $30,000 for school and pay rent on a shared apartment in London.
In the 1999 case of Mullins v. Kentucky Natural Energy, T.L.C.A., 949 S.W.2d 594 (Ky. Ct. App. 1997), a company was hired for a low assistant position. The employee, who was hired at 19 years old, worked there for two years and was fired. Two months later, she filed a suit against the company for wrongful termination, sexual harassment, and intentional infliction of emotional distress. However, she was found to have failed to prove her case. She soon added the same sexual harassment charges to a Kentucky Commission case against the company. Two years later, she left her job and moved to Cleveland. More than ten years before taking her case to trial, the succession was halted and the case was dismissed without prejudice. Despite her age, the court found that she was still considered a minor; and state law prohibits juvenile plaintiffs between the age of 13 and 18 from bringing lawsuits.