Safe Haven: Granting Support to Victims of Child Abuse Who Have Been Judicially Emancipated

• Published date: 01 July 2014
• Date: 01 July 2014
• DOI: http://doi.org/10.1111/fcre.12109

SAFE HAVEN: GRANTING SUPPORT TO VICTIMS OF CHILD ABUSE

WHO HAVE BEEN JUDICIALLY EMANCIPATED

Mayra Alicia Cataldo*

Emancipation is the process by which a minor becomes free from the custody and control of the minor’s parents. There are

twenty-eight states with emancipation statutes that set forth the procedure for obtaining emancipation status. Current eman-

cipation statutes terminate the parents’ obligation to support the minor. Thus, parents of emancipated minors are no longer

required to provide financial assistance, health care or housing to the minor. Although minors must show that they have an

independent and legitimate source of income when they first petition for emancipation status, the increased financial burden

and limited options of support available to minors leave them vulnerable to becoming impoverished. Minors who seek

emancipation due to domestic violence, child abuse, neglect, and abandonment are especially vulnerable to becoming

impoverished and homeless due to financial insecurity, lack of affordable housing, and mental illness resulting from trau-

matic experiences in violent households. This Note proposes an amendment to state emancipation statutes authorizing the

court to exercise its discretion in granting continued parental support to minors who are seeking emancipation due to

maltreatment. Assistance should be calculated based on the state’s guidelines for child support payments, but parents should

not be responsible for debts incurred by the minor after emancipation is granted. Assistance should continue only until the

minor reaches the age of majority. A grant of postemancipation financial assistance will further the state’s interest in

protecting the welfare of children by ensuring that minors have sustenance, housing, health care, and the opportunity to

complete their education.

Key Points for the Family Court Community:

• Currently twenty-eight states have statutes that set forth the procedure in which a minor can petition for emanci-

pation status.

• Nearly half of states with emancipation statutes terminate the parent’s obligation to provide financial support to the

minor.

• Without support from their parents and limited options for work and housing, judicially emancipated minors are

vulnerable to impoverishment.

• Minors who seek emancipation status because they were abused, neglected or abandoned by their parents should not

be forced to incur all expenses that result from leaving the household.

Keywords: Child Abuse;Child Support;Common Law Emancipation;EmancipatedYouth;Emancipation Statutes;Emanci-

pation;Judicial Emancipation;and Neglect.

I. INTRODUCTION

Meet Jhette Diamond.1Since the age of eleven, Jhette has workedas a restaurant ser verand busser.2

At the age of thirteen she left home due to the violent behavior, drug and alcohol abuse problems her

mother’s boyfriend perpetrated.3The event leading to Jhette’s decision to leave home occurred one

evening when, during the course of an argument, she witnessed her mother’s boyfriend shake her

mother and throw her against the bed.4As her mother was having a panic attack the boyfriend left and

Jhette, only thirteen at the time, drove her mother to the hospital.5After Jhette and her mother returned

from the hospital, the boyfriend reappeared.6When Jhette tried to block his access to her mother, he

picked Jhette up and threw her over a couch.7

Following this incident, Jhette expressed to her mother that she did not want the boyfriend visiting

anymore.8Her mother responded by moving in with the boyfriend and leaving Jhette alone in their

trailer home with no water, gas or electricity due to unpaid bills.9Although Jhette was working part

Correspondence: mcatal8@pride.hofstra.edu

FAMILY COURT REVIEW, Vol. 52 No. 3, July 2014 592–609

© 2014 Association of Familyand Conciliation Cour ts

time, she was unable to make the rent payments and was eventually evicted in the middle of winter.10

She lived with neighbors for several months and contributed to rent, household costs and paid for her

personal expenses while maintaining a high grade point average in high school.11 Then at the age of

sixteen Jhette petitioned the New Mexico District Court for a declaration of emancipation.12

Although she was already living apart from her mother for three years, without parental consent

Jhette had difficulty receiving medical insurance, obtaining her school report cards or applying for a

drivers permit.13 Emancipation14 would allow her to do all of this including opening a personal bank

account.15 After reviewing her petition, the district court determined that emancipation was in Jhette’s

best interest and granted her emancipation status.16 Jhette also petitioned the court to order her mother

to pay retroactive and prospective child support.17 The mother argued that New Mexico law does not

allow an emancipated minor to receive child support.18 However, the New Mexico District Court

interpreted the language of the emancipation statute broadly, holding that emancipation does not

necessarily terminate the minor’s right to financial support.19

According to the New Mexico District Court, Jhette Diamond’s situation is the “classic case” for

emancipation.20 It is common for the court to grant emancipation status to a minor in situations where

the father has either died or abandoned the family and the mother is abusive or unable to assume a

parental role.21 In these cases minors leave their homes in hopes of improvingtheir situations, but they

realize that they need emancipation status in order to be independent from the parent.22 In New

Mexico, a minor can be judicially emancipated if the minor is at least sixteen years of age, is living

separately and apart from the parents, is managing the minor’s own financial affairs, and the court

finds that emancipation is in the minor’s best interest.23 A grant of emancipation will have the same

effect as if the minor has reached the age of majority.24

Emancipation provides minors with the opportunity to leave abusive households and establish a

better life.25 However, minors who are emancipated by statute lose the financial support of their

parents.26 And although minors are required to demonstrate that they are economically self-sufficient

when they first petition for emancipation status, the increased financial burden and limited options of

support leave minors vulnerable to impoverishment.27This Note proposes that states with emancipa-

tion statutes amend their emancipation laws by including a provision granting postemancipation

financial support to minors who are victims of domestic violence, child abuse, neglect or abandon-

ment. Assistance should be calculated based on the state’s guidelines for child support payments and

assistance should only be given until the minor has reached the statutory age of majority within the

state the minor is residing.

Part II of this Note discusses the purpose of emancipation laws and the rights obtained by judicially

emancipated minors and reconciles the conflict between the constitutional rights of parents to have

control of their children and the right of the minor to be emancipated. Part III discusses the problem

of poverty and homelessness resulting from terminating all parental support to the minor and provides

a multistate analysis comparing emancipation statutes that terminate all parental support with those

that do not. Part IV discusses common law emancipation and presents federal statutes and policies

currently in force that were designed to improve the outcomes of homeless minors. Part V discusses

the process for requesting assistance, a budget plan and the method for calculating support. In

addition, an appendix is attached with the detailed language of the model statute that this Note is

advocating for. Part VI addresses anticipated objections to this proposal such as the justification to

require a parent to continue supporting a minor after the termination of parental rights. Part VII

concludes by reaffirming that granting postemancipation financial support to abused minors will

further the State’s interest in ensuring that these children are protected.

II. THE EMANCIPATION PROCESS

Historically, emancipation laws were enacted to protect minors from claims against their wages

asserted by their parents or third parties.28 Under the common law, minors who are on active duty in

the armed forces or who marry are considered legally emancipated.29 Twenty-eight states have statutes

Cataldo/SAFE HAVEN 593