EMANCIPATION TODAY

August 22, 2011 § 7 Comments

Emancipation occurs when a child has attained a status in which he or she is no longer entitled to parental support and control. The law of emancipation has undergone many changes in the last few decades.

MCA § 93-11-65 (8) now sets out the statutory bases for an adjudication of emancipation. There are two categories of emancipation. Category One requires a finding of emancipation upon the occurrence of any of the enumerated facts. Category Two cases allow the court in its discretion to find emancipation on proof of any of the enumerated facts.

Category One. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:

  1. Attains 21 years of age, or
  2. Marries, or
  3. Joins the military and serves full-time, or
  4. Is convicted of a felony and sentenced to two years or more.

Category Two. The court may determine that emancipation has occurred, unless otherwise provided in the underlying child support judgment, if the court finds that the child:

  1. Has attained the age of 18 years and has discontinued full-time enrollment in school, unless the child is disabled, or
  2. Voluntarily moved from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors before reaching the age of 21, or
  3. Cohabits with another person without approval of the parent obligated to pay child support.

The statute also provides that child support for an unemancipated child who is incarcerated is suspended during the period of incarceration.

In Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss. 1991), the court stated:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.  

In the case of Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss. 1998), the MSSC stated that the statute enlarges, but does not diminish, the Caldwell definition. In other words, the courts are not limited to the statutory language in determining emancipation. Putting the Caldwell definition together with the statute, it appears that the court has discretion to find that proof of emancipation facts under Category Two will not necessarily emancipate the child if the court determines that the child’s situation does not satisfy the Caldwell definition of emancipation.  On the other hand, the trial court has no discretion under the Category One facts. 

The Rennie court also announced the rule that the child gets “one bite of the apple,” and that a child once emancipated may not be unemancipated once the conditions that gave rise to the emancipation no longer exist. See also, Crow v. Crow, 662 So.2d 1226, 1228-30 (Miss. 1993). 

It is the child support payor’s duty to bring the issue of emancipation to the attention of the court. Strack v. Sticklin, 959 So.2d 1, 6 (Miss. App. 2006). When the payor fails or delays in seeking relief from the court, as opposed to self-help, the decision whether to make the emancipation retroactive is left to the judge’s discretion. Houck v. Houck, 812 So.2d 1139, 1143 (Miss. App. 2002). But note that emancipation of one or more children does not necessarily reduce child support where the child support obligation is “global” rather than a sum per child. Wiles v. Williams, 845 So.2d 709, 711-12 (Miss. App. 2003).    

The language of the statute “Unless otherwise provided in the underlying child support judgment” is recognition of case law that provides that the parties may extend emancipation or provide other emancipation triggers by agreement. A typical example is where they agree that “college and child support shall continue until the child attains a bachelor’s degree or age 23, whichever occurs first.” The statutory language raises the question whether the court, without an agreement of the parties, could extend the Category One emancipation triggers in an adjudication of child support. I think not, given the shall language of Category One. But what about where the parties agree, in a consent for example, that the court will adjudicate the extent and duration of child support? An intriguing question, and I am not aware of any case law one way or the other.

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§ 7 Responses to EMANCIPATION TODAY

  • billy says:

    I have a 19 yr old daughter who has left home. I pay child support for, but the mother does not give her the child support. Infact, the mother does nit support her at all. I read where the child can emancipate herself. How does she go about this?

    • Larry says:

      I can’t give anyone legal advice. I suggest you talk with a lawyer and find out what it would take and how much it would cost, but I can say generally that a child who has left home except to attend school is likely emancipated by operation of law. Again, a good family lawyer can advise you.

  • Mitch says:

    Larry, a family member of mine is in a situation where the 19 year old minor satisfies the requirements under category 2 (discontinued education, cohabitates with an individual separate from both parents, has a job, has a child). The minor wishes to become emancipated and both parents are willing to consent to the emancipation. The parents were never married but there was a child support order issued several years ago in Panola County. The child and both parents currently live in Neshoba County. My question is, would it be proper to file the complaint for emancipation in the county where the minor currently resides or would it be necessary to file it in the court that issued the child support order?

    • Larry says:

      The emancipation action would actually modify the prior Panola County judgment, so that county would have jurisdiction unless it transfers the action to Neshoba where the parties and the child now reside. I did a post on this very subject on 2-10-11, “MODIFICATION AND CONTEMPT: WHICH VENUE?” If there were no prior order, Neshoba would be the proper venue, per MCA 93-11-65. This is not intended to be legal advice, only elaboration on what I have posted before. They should consult with an attorney who can advise them about the intricacies of emancipation and jurisdiction.

  • Mike Holleman says:

    I’ve recently encountered a product liability defendant who is trying to use this statute and cases to contend that a minor was emancipated through conviction and incarceration, losing his disability for product liabilty SOL purposes. This statute and the cases interpreting it apply only to child support IMHO.

    The general emancipation statutes, 93-19-1 et seq, still control in other cases, with 93-19-9 (if memory serves) controlling removal of disability to sue or be sued.

    • Larry says:

      Interesting point. I have not had it presented to me from that standpoint, nor have I read the cases one way or the other on ramifications of the emancipation statute for issues other than child support and custody. I do have a post coming that talks about the disabilities of minority and how far they extend. Disability of minority is the hand in the glove vis a vis emancipation, so maybe that will help shed some light.

      Thanks for that insight.

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