next up previous contents index
Next: Mature Minor Up: California Previous: California   Contents   Index


California's current emancipation statute, effective January 1, 1979, resulted from dissatisfaction by public interest lawyers over what they viewed as unnecessary problems facing clients who had not reached the age of majority. Now, California's Emancipation of Minors Law enables a minor to petition the court and be granted emancipation with relative ease. When considering these petitions, the superior courts in California are authorized to grant emancipation to children who are at least 14 years of age, and under the age of 18, by authority of case law or Family Code statutes 7000 and 7120, the Emancipation of Minors Law.235 Also, the court may recognize emancipation if the minor is validly married or on active duty with the armed forces.236

To begin the process of emancipation, a minor must file a petition with the court stating that they are at least 14 years of age and has the consent of her parent or guardian, is willing to live separate and apart from her parents or guardian, demonstrates to the court she is managing her own financial affairs, and must provide evidence that her income is not derived from criminal activity.237 In addition, the minor must provide an affirmation that emancipation is not contrary to the minor's best interest.238 Prior to the hearing of the emancipation petition, notice must be given to the parent, guardian, or other persons entitled to custody of the minor, as well as to the district attorney of the county where the petition is filed. Other than notifying the parent that an emancipation petition has been initiated by the minor, parental involvement is not required.239 If the court is satisfied that emancipation will not be ``contrary to the minor's best interest,'' the petition is sustained and the minor is emancipated.240

Once a minor is emancipated, she is entitled to consent to medical care, enter into binding contracts and real estate transactions, sue and be sued, enroll in school, establish her own residence, and apply for work permits.241 Once granted, a declaration of emancipation may be voided upon a showing that it was obtained by fraud or misrepresentation of material information, or may be rescinded if the minor becomes indigent and has no means of support.242 This option of rescission gives the court some degree of control over what happens to minors after they leave the courtroom, essentially granting the judiciary not only the power to confer emancipation but also the power to take it away.

Prior to the 1979 enactment, the common law meaning of emancipation and its consequences was haphazard, and no standards or statutory guidelines existed to determine when a minor was emancipated.243 The proposed legislation sought to expand legal mechanisms to independent and self-supporting minors, to assist them in uncomplicating their lives, to remedy inadequacies of the existing law, and clarify the definitional limitations of common law emancipation, implement procedures, remove barriers, and allow minors themselves to petition for emancipation.244 The new emancipation statute was not designed to benefit all youths, but rather those that are usually brighter, more self-sufficient, and industrious, and have matured ``earlier than the arbitrary eighteen year designation which serves as the age of majority.''245 The legislators acknowledged that the statute would help not only minors who had good relations with their parents but also those who did not.246 Also, proponents of this new legislation argued that emancipation might actually save the state money by removing mature and self-reliant minors from expensive foster care prior to reaching the age of majority.247

The California statute, like most other states' emancipation statutes, while greatly expanding the rights of minors, does not grant minors carte blanche every right an adult is entitled to. An emancipated minor in California still receives minority status for purposes of school attendance laws, certain child labor laws, voting laws, and laws that restrict the possession and purchase of alcohol.248 In addition, the California juvenile courts retain jurisdiction over minors who are emancipated prior to reaching the age of majority.249

The level of detail within the statute evinces the intent of the legislators for the text to be straightforward and inclusive of all parties to whom the petition has an effect. Criticism of this law does exist, however. But such criticisms are generally derived not from the procedural language itself, but rather from the inconsistent way that the courts seem to apply the standards within the text.

California's Emancipation Law has been the subject of numerous studies and criticisms because it seems to hinder emancipated minors from building independent lives.250 Although the statute requires that emancipation must not be contrary to the best interest of the child, this is not always a paramount consideration for the court.251 This is partially due to the fact that the requirements set forth in 7120 are not always strictly adhered to. For example, judges tend to be lax in enforcing the requirement that the minor must be willing to live separate and apart from her parents or guardian.252 While the court insists that a minor has legally derived income, the amount of income required is left unspecified.253 Lastly, the ``best interest'' requirement is up to the discretion of the court and rarely is the emancipation petition denied on this ground.254 The court generally looks at the harm that will come to the child if emancipation is granted and the judge relies on his or her own personal experiences when examining the totality of the circumstances surrounding the petition.255

In their emancipation study, Sanger and Willemsen found that early emancipation often has the unintended consequence of forcing minors to quit school so they can work.256 Sanger and Willemsen also found that homelessness was another serious problem for emancipated minors.257 This conclusion was strengthened by evidence from the state of Michigan, demonstrating that a large number of minors in the state's runaway shelters were emancipated minors. This finding in Michigan actually led that state to amend its emancipation statute to require proof of housing by the minor before emancipation is granted.258 Lastly, Sanger and Willemsen found that many of the minors had second thoughts about emancipation, mostly attributed to the lack of understanding about what the rights, limitations, responsibilities, and consequences of their new status would entail.259 The unintended consequences, coupled with the relative ease and speed with which an emancipation petition is granted, suggests that California's statute is flawed to the detriment of those it is intended to serve. This is due, in part, to the fact that judges, rather than making independent, best interest determinations, often use parental signatures on petitions to serve as a proxy for this determination.260 Considering the deleterious effects that a grant of early emancipation has on many minors, the standard of ``not contrary'' to the youth's best interest, at times, seems to be ignored.

As a result of their research, Sanger and Willemsen offer modifications to California's statute that would reduce the negative consequences of emancipation. These recommendations include: (1) increasing the age requirement from 14 to 16 years; (2) appointment of counsel, whose chief obligation would be to educate the minor about emancipation; (3) inquiring about the current educational status of the minor, as well as future plans;261 (4) requiring declarations similar to those required in Michigan;262 (5) requiring more substantial proof of the minor's independence; (6) relegating emancipation determinations to family court judges; and (7) incorporating specific factors into the statute that will assist the judiciary in making ``best interest'' determinations.263

Although California's statute has been shown to have unintended results, it is still useful to JRI because it is of interest to many researchers. Therefore, there is a lot of useful information available. Furthermore, the recommendations offered by Sanger are just some of the criteria that should be explored by future law offices because they appear to be based on in-depth analysis of primary and secondary sources.


Cal. Fam. Code Ann. 7000, 7120 (LEXIS L. Publg. 2001).
Cal. Fam. Code Ann. 7121 (LEXIS L. Publg. 2001).
Cal. Fam. Code Ann. 7122 (LEXIS L. Publg. 2001).
Sanger and Willemsen, supra n. 37 at 261.
Cal. Fam. Code Ann. 7050 (LEXIS L. Publg. 2001).
Cal. Fam. Code Ann. 7130 (LEXIS L. Publg. 2001).
Sanger and Willemsen, supra n. 37 at 251.
Id. at 254.
Id. at 255.
Id. at 260.
Alexis A. Phocas, Runaways and California's Juvenile Law: The Emancipation Option, 19 J. Juv. L. 46 (1998).
Sanger and Willemsen, supra n. 37.
Alton, supra n. 21.
Id. at 664.
Id. at 664.
Id. at 664-665.
Sanger and Willemsen, supra n. 37 at 291.
Id. see also Phocas, supra n. 250.
Id. at 292.
Id. at 293.
Id. at 316.
For example, Montana grants emancipation only when the court finds that the youth will continue to diligently pursue graduation from High School or has already graduated, and Indiana requires that emancipated minors are still subject to compulsory school attendance.
see discussion of Michigan's emancipation statute later in this paper.
Sanger and Willemsen, supra n. 37, at 336-341 and 664-665.

next up previous contents index
Next: Mature Minor Up: California Previous: California   Contents   Index
LCD Law Office #2