Other Legal Arrangements for Minors

by KATINA ANCAR

In addition to custody determinations in divorces, the care, custody, and control of minors may be determined by other legal processes or arrangements. They include legal guardianship and emancipation, described below.

Legal Guardianship

A guardianship is a formal legal arrangement that transfers legal custody of a child under 18 to someone, usual­ly to a person other than the child’s parent./1/ A judge must appoint a guardian. The court to which a potential guardian must apply varies from state to state. The options include, but are not limited to, the county juvenile, family, probate, or children’s court./2/

    A guardianship does not terminate parental rights. Guardianship merely suspends a parent’s custodial rights. Moreover, legal guardianships do not last forever. Most guardianships end at age 18, or when the guardian or child dies, or when the court grants a request to terminate the guardianship. Although caring for a child without court-ordered custody is not illegal, a guardianship gives the guardian legal rights and respon­sibilities that an informal caregiver would not have. A legal guardianship makes the guardian responsible for the care, custody, and control of the child. A guardianship also allows a caregiver more easily to enroll a child in school and make educational decisions, obtain medical coverage, and make medical decisions for the child.

    Parents have the right to object to a guardianship or custody order. The court must generally determine that the child will suffer some harm or detriment if the child remains in parental custody and that a guardian­ship is in the child’s best interest. In some states a parent may still visit a child after a guardian is appointed. The judge may order a specific amount or type of visitation and a particular schedule. Other times, the court may provide visitation solely at the guardian’s discretion.

    A guardian may be either a relative or a nonrelative. If the child is related to the guardian, financial support is available to guardians through a Temporary Assistance for Needy Families (TANF) grant./3/ If the custodian is not related, a child may not receive a TANF grant. However, there may be other avenues for support. For exam­ple, in some states a nonrelated guardian may receive state-funded financial assistance and medical coverage for a child. Because in most cases a transfer of custody does not extinguish a parent’s financial support obligation, child support and private medical coverage from the parents may also be a source of support for the child.

Emancipation

Emancipation is a legal process that releases a minor from the care and control of any parent, guardian, or insti­tution (such as the foster care system). The age of emancipation or majority (when a person becomes a legal adult) varies from 18 to 21 with state law. However, a minor may request to be emancipated at an earlier age. Thereafter the minor is responsible for one’s own care and (in most cases) financial support.

    The effect of emancipation differs by state. Generally, however, emancipated minors may work, make all medical decisions, choose a residence, enroll in school or college, enter into basic contracts, and sue and be sued without the consent of a parent or guardian. But, in gaining these adult responsibilities, emancipated minors lose many important childhood privileges, including the right to financial support from both parents, protec­tion from financial liability for accidental or intentional harm that the minor may cause, and out-of-home care options such as foster care./4/

    Emancipation does give minors rights similar to adults. However, in most states, some rules do not change. Emancipated minors may not get married or enroll in the military without the consent of a court or a parent. Emancipated minors may not drive, smoke, purchase or consume alcohol, or vote before the applicable ages. Statutory rape laws still apply, and a minor must still attend school.

    In some states, emancipation is final. Once emancipated, the minor may not “unemancipate.” In other states, however, a minor remains emancipated only as long as the conditions allowing emancipation contin­ue. For example, if before reaching the age of majority a minor loses a stable source of financial support, the minor would no longer be considered emancipated.

    A decision maker (typically a judge) takes many factors into account when determining whether emanci­pation is appropriate for a minor: age, ability to be financially self-supportive, parent’s consent for the minor to leave out of home, the minor’s wish to live apart from parents, maturity, and whether emancipation is in the minor’s best interest. Some states have specific laws on how to emancipate, while in other states the appli­cation process varies by county. Advocates working with minors who wish to emancipate can contact a local children’s rights organization, the county court clerk, or the local child welfare agency to find out about how to proceed in their counties. However, especially in those states in which emancipation is irreversible, advo­cates should be sure to explore fully with the minor other placement options (such as guardianship or living informally with a relative or family friend)./5/

 Katina Ancar is a Skadden Fellow at the National Center for Youth Law, 405 14th St., 15th Floor, Oakland, CA 94612; 510.835.8098.

1 Some states do not provide for a “guardianship” or “custodianship.” In those cases nonparents may have to file a

custody action, just as a biological parent would.

2 Advocates should call local children’s organizations or the county court clerk to determine how to petition for a

guardianship in their state.

3 Some states offer special financial assistance to children who are living with a relative. Advocates should contact the

local social services agency to determine if their state has such a program.

4 Some states offer the option of emancipation for certain purposes, such as making educational decisions.

Furthermore, marriage and joining the armed services (e.g., air force, army, navy, marines, coast guard) may result

in emancipation. However, before doing either, the minor needs the permission of a parent or guardian.

5 For specific information on the laws regarding emancipation and the age of majority in a state, see www.law.cor-

nell.edu/topics/Table_Emancipation.htm.

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