A Primer on Legal Emancipation in Texas

All About Emancipation

Emancipation is a court process to release a minor child from parental control and parental care. Texas Family Code § 31.003-005. It becomes most relevant when one or both parents of a minor child no longer meet the needs of the child and the child has been in the same or similar situation for a significant amount of time. The court can then take control of the family and the rearing of the minor child/children by appointing a suitable party, including the child, as conservator over the minor children. The best way to understand emancipation is to understand the term "conservatorship." Conservatorship derives from situations when a child(ren) is/are removed from the home by Child Protective Services (CPS) and a court, the District Court, appoints a person or persons to take the place of the parent(s) in the management of the children’s care and affairs. At that point there are designated rights, privileges, duties and liabilities that go along with conservatorship. Relationships between conservator(s) and the children are often compared to relationships between parents and their children. So in some respects, a minor child can replace a parent and their parental duties when they have been out of the home for an extended period of time. This is a radical change for a minor-teenage child, but it is a viable option for those teenagers that are mature and self-reliant in their lives. The parent or the child can seek the emancipation , but a parent typically should not seek the emancipation unless he or she is deemed unfit to remain in the home. A minor child can seek the emancipation if: 1) They are at least 17 years of age; or 2) They are married. A minor can successfully petition for emancipation by producing evidence to the court showing the following five elements under Texas Family Code § 31.003. The minor: Each factor is very case specific and is left up to the discretion of the court. However, if the court finds that any of the five elements are not substantially met, then the emancipation will be denied and the minor will remain under the care of his or her parent or guardian. In the case of an emancipated minor, the parent or guardian no longer has a duty to exercise care, control, protection, and reasonable discipline over the child and the minor is not entitled to the care, custody, and control of the parent or guardian. Situations that could result in an emancipation of a minor are: a dual-parent family situation where the child is living with one parent consistently; the dual-parent family situation where the child is living with one parent consistently and neglect is present in the parent/child relationship; or the dual-parent family situation where one of the parents is incarcerated for an extended period of time, the minor is over the age of 17 and has a good job, sufficient financial resources, a stable home, and should probably be the primary conservator of the child.

Who Qualifies for Emancipation?

The first step in the process is confirming eligibility. Because the purpose of emancipation is to confer the legal independence that comes with age to a minor, it should come as no surprise the most common eligibility requirement is based on age. Specifically, under Section 31.001 of the Texas Family Code, the minimum age requirement is that the minor must be at least 18 years old to be emancipated. However, that is not to say that a minor under 18 cannot seek emancipation. Family Code Section 31.002 provides that a minor may petition for emancipation if he or she is aged at least 16 and "the person’s parents or managing conservator joins in the application for or consents to the grant of the writ."
Beyond the age requirement, minors seeking emancipation must also show an understanding of the proceeding. A minor submitting a petition for emancipation should set out his or her understanding of the different legal rights granted and removed by emancipation. In general, emancipation from one’s parents only removes the rights that naturally belong to parents who have not given up or transferred their rights. Such transfer or waiver cannot occur before the minor turns 18. Emancipation does not transfer, limit, or affect the rights of the parents to their minor or the rights of a parent of the minor to make medical decisions. Parent’s rights to make medical decisions for their child do not terminate until the child turns 18.

The Legal Mechanism of Emancipation

The legal process of emancipation begins when the minor files an application for a court order. This is typically at the minor’s place of residence, including their parent’s or guardian’s county if they live outside that county. If a minor seeks emancipation but lives outside of Texas, the application can be filed against the parent or guardian in the county where the parent or guardian resides.
The application must include the following documents: One copy of the application must also be mailed to the minor’s parent or guardian at the address listed on the application. After filing the emancipation papers, the minor must wait at least ten days before any hearings.
The legal process requires a hearing before the judge, which is typically held 30 days after filing the application. The minor must prove that they have been a resident of Texas for the previous six months. The minor then meets with the judge and the parents or guardians, where the judge will ensure that the minor understands the significance of being emancipated. The judge will also make sure that the minor is properly informed about the effects of emancipation and is making the decision to seek emancipation voluntarily.
In the hearing, the minor may be questioned by the judge about the application for emancipation, as well as their family situation. The minor must also provide evidence of financial independence, including proof of an income stream and a financial plan for future expenses. A plan for medical insurance is also typically required.
There are no filing fees for emancipation papers, other than the cost of a lawyer if you choose to hire one. However, to get a final order, you must pay a court fee. Procedures may vary throughout Texas, so it’s best to ask questions directly from the court clerk where you will file your emancipation papers in order to avoid any additional fees.

Your Rights After You’re Emancipated

The process of legal emancipation is not an ultimate "out" of the minor’s family – the minor is still bound, for example, by ongoing child support and custody orders. However, a legally emancipated minor has the right to enter into binding contracts. He or she can sign a lease or a contract for utilities. For the first time, he or she can truly answer "yes" when asked if they have a job, have a bank account and have their own place to live.
However, perhaps the most important, parentally unfreeing attribute of emancipation is that the minor who becomes legally emancipated in Texas is obligated to support himself or herself financially, and can be held responsible for the cost of the support the parents previously provided. If the minor enters into a contract and fails to pay the bills , landlords and service providers have the right to collect from the minor directly. This is important: a common misconception is that a minor who is simply repeating a grade is somehow "emancipated" from their parents, so that they cannot be forced to comply with the orders of the original court – this is not true.
In Texas, parents must continue to provide the support ordered by the court until the minor actually turns 18 (or until further order of the court). The law simply does not recognize the difference between a 16-year-old minor living in their parent’s home and a 16-year-old minor with their own apartment; both are still entitled to child support, and both parents will have a legal interest in the welfare of the child. However, beginning on the minor’s 18th birthday, the court’s jurisdiction ends, and the parents have no obligation to continue to support the child.

Drawbacks of Emancipation

The legal emancipation of a minor in Texas is rare because it becomes more of a headache for the courts than anything else. While emancipation sounds good in theory, the reality of emancipation is that you are relieving the parents of their duty to support the child while expecting the child to be responsible enough to handle things on their own.
For whatever reason, children feel that it is important to get away from their parents as soon as possible. While this might work out in the best interests of the child for some reasons, the fact of the matter is that the parent is going to end up with the legal obligation to care for the child. This means that the child has an obligation to help contribute to the household budgets and to make things easier on the parent, and when the child fails to meet these obligations there can be serious legal consequences.
The goal of a legal emancipation is to free the minor of the duties that fall on parents. In effect, the court places the duties and responsibilities of the parent on the minor. This means that when emancipation is granted, the minor then has the obligation to provide for themselves. They must provide for the cost of living to include rent, utilities, food and transportation, they must provide for and fill the roles of birth certificate, social security card, passport and drivers license.
Most minors cannot manage all the minutiae of adulthood. They cannot afford housing, they cannot pay for groceries, they cannot afford lights, water and gas, let alone transportation. They do not have phones to receive job offers or ride invitations, they do not have jobs or even the ability to get jobs that offer anything more than minimum wage. There are some that might manage to enter into a few hours of the minimum wage, but even at that rate, the minor is not making any money statewide, let alone within the surrounding counties.
The worst problem of becoming an emancipated minor is not being able to get away from the parent. As far as the courts are concerned, the moment that the courts grant a parent to terminate parental obligations, there is no recourse for the parent if the child continues to live with them. And while the parent is no longer obligated to provide financial assistance, there are parents that will continue to provide at least some level of support if only to prevent the child from freezing in the winter months or frolicking though the streets at night.
In the event that no parent will take the emancipated minor in, and the minor does not have a steady stream of income to pay for a place to live, now there is another problem; the emancipated minor has to get a job, but that job must pay for a place to live. If the minor needs to pay for utilities, food, transportation, and all of the other related expenses, there is no way that the minor is able to afford bills and still make room for savings and fun.
This is the biggest burden that is often overlooked by those that believe emancipation is a good idea. It sounds like an escape from the parents, but once the minor is removed from the parents, the reality is that the minor is on their own. If your child is insistent about your divorce or separation, you should give them the information about the rules of emancipation so that they know what they are getting into. They are going to have to learn how to function as an adult, and they cannot rely on anyone else after the emancipation is granted.

Consulting an Attorney

Seeking legal counsel when considering emancipation is vital to ensure that the laws and processes are followed. Dr. Kristal DeSantis will provide guidance during this process.
First of all, you should understand that not all Texas family law practitioners handle emancipation matters. Thus, a parent, or an emancipated minor, may have to interview several lawyers before finding one who is experienced with emancipation proceedings.
Your consultations should begin with some general questions about the attorney’s law practice as a whole. You may be able to gauge whether this attorney handles emancipation proceedings regularly. Below are a few examples of specific questions to consider asking during your consultation.
You also want to be sure that the attorney handles your type of case . Ask how long the lawyer has been practicing law and how many emancipation petitions he or she has handled, including how much of their practice revolves around emancipation.
Make sure all your questions are answered before hiring a lawyer. It is important for you to feel confident about the representation you are receiving. While you may be anxious to find a lawyer to handle your case, the lawyer needs to be confident that you can provide the necessary documentation of the case, as well as the financial support to cover legal fees.
Finally, you not only want an attorney who will handle the case for you, but you will want an attorney who takes the time to educate you on the emancipation process. Either you or your minor child will have to interact with the attorney handling the emancipation proceeding, so it is important to be comfortable with him or her.