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231. A parent's legal liability for the acts of their children is limited

The Common Law Rule is a parent is NOT responsible for the acts of their Children UNLESS they are part of the underlying action OR have reasonable expectation that the child would do something bad (i.e. parents are NOT liable of their child pull a chair from under someone else UNLESS it can be shown they know the Child would do so AND could have prevented it, if the parents do NOT meet BOTH requirements, the parents are NOT liable for the act of their child).

Now, many states have passed laws making parent's liable for the acts of their children, but these laws, being in derogation of the Common Law are strictly construed, i.e. The parents MUST meet all of the requirements of those laws, or the parents are NOT liable. If a Child does an act and someone is harmed, the Child can be held liable, but except if there is a law passed by the State Legislature, the parents are NOT liable.

Now, parents are liable to their children when it comes to support, generally a place to live, food and clothing, but only to what would be expected of a person of the parent's income (i.e. if the parents have no income, their children can starve, live on the streets and go around in rags). On the other hand, of the parents have income (or can get welfare and most parents fall into one or the other categories) then they have a duty to provide housing, food and clothing.

As to entering into a valid contract, a teenager can do so if emancipated. i.e. not under the care, control or supervision of their parents by the act of the parents. Some states permit judges to emancipate minors, other states require no such finding by a judge (but permit such findings if needed).

Here is a paper I did several years ago on Emancipation in Pennsylvania, a state that does NOT require a child to go in front of a judge to be emancipated: I deleted the section on what type of employment a minor can do, for that is a restriction on EMPLOYERS not parents, and I excluded the section of the law where 18-21 years olds are now treated as if there were over age 21.

Paper on Emancipation

Note: This paper was written so my clients have a better idea of what emancipation is and is not. This letter provides information on what is emancipation of a minor.

Reference to the P.L.E.

Enclosed herein are copies of a section of the Pennsylvania Law Encyclopedia (P.L.E.). The P.L.E. is an encyclopedia of Pennsylvania law. I have attached the section of the P.L.E. regarding emancipation of children . The section covers the subject of emancipation of minors fairly completely therefore I will not repeat what is covered by the P.L.E. in this letter.

EMANCIPATION OF CHILDREN - CONTRACTS (Footnote 2)

An emancipated minor has all of the responsibilities and duties of an adult. All contracts agreed to by an emancipated minor are enforceable against the emancipated minor. Most, if not all, of the case law involve the issue of contract law. The reason being is that is when the issue of whether the minor was emancipated or not is a factor (Footnote 3)

Since 1972, by statute, the right to enter a contract and the right to sue (or be sued) starts at age eighteen (18) not twenty-one (21) (Footnote 4).

ACT OF EMANCIPATION.

For children under age Eighteen (18) the legal presumption is that they are not emancipated, but this can be rebutted. The burden of proof of showing whether a child is emancipated or not is on the party seeking to show the minor was emancipation.

Careful reading of the P.L.E. section cited above (and attached to this letter) requires an "juristic act" of the parent before an minor is emancipated. Now the "juristic act" does not have to be any formal act, but some indication that the parent is no longer exercising "care, control or supervision" over the minor. It can be as simple as not requiring the child to go to school or to the act of ordering the child out of the parents' home.

When a parent orders a minor out of their home, that is clearly a "juristic act" that makes the child emancipated, but does not relieve the child (or the parent) of any statutory restrictions or duties imposed by age.

On the other hand a minor moving to college is probably not a "juristic act" because while the minor is no longer living with the parents, the parents are indirectly exercising "care, control and supervision" of the minor.
Holding a job.

Do remember merely having a job does not make a person emancipated, what is required is to be no longer to be under the Acare, control or supervision of one's parents. Work is a factor, but not conclusive by itself.
Marriage (footnote 5)

Marriage is not a conclusive factor in determining whether a child is emancipated, but is a factor to be considered under the totality of the circumstances. Berks County Children and Youth Services vs Rowan, 631 A.2d. 615, 428 Pa Super. 448 (1993).
Pregnancy

Pregnancy does not make a minor emancipated. Now Pregnancy is often evidence of a lack of care, control and supervision, but the pregnancy by itself is only evidence of a lack of care, control, and supervision not proof of such lack of care, control and supervision. Please note special rules covers abortion and emancipation . (Footnote 6)

Payment of Child Support

Payment of child support indicates a minor in un-emancipated for emancipation of a minor ends all duty to pay child support for that minor.

Ending of Emancipation before age Eighteen 18.

Also note that an emancipated minor can cease to be an emancipated minor if the minor returns to the "care, control and supervision" of his parent.

If such an event occurs all contracts formed by the minor, while emancipated, are still valid. The minor is still liable for such pre-existing contracts, but any contracts entered into by the now un-emancipated minor are treated as if the minor was never emancipated. i.e. all such contracts are voidable. This is rare but can occur.

To better understand this remember that the common law rule was developed to reflect the working conditions in rural America and England prior to 1900. It was not un-common for minors to leave the family home and go to work on various farms in the spring, summer and fall. During the winter they would return to the family home.

During the time away from home the minors would have to be able to contract for housing and food (As while as work). Since the minor left the family home with permission of their parents the A "juristic act" part of emancipation would have been fulfilled, thus their were emancipated minors during such periods. Such emancipated minors could make valid enforceable contracts.

When the minor returned to the family home the minor would become "un-emancipated". As a now un-emancipated minor they could no longer make valid enforceable contracts.


As to the contracts formed while emancipated, those would still be enforceable against the minor, but no new valid contracts could be entered until emancipated again the next planting season.
Please remember more than just moving out or into the family home would be needed to show a change in emancipation status, but such a movement would be strong evidence of such a change. (See the attached paper from the P.L.E. for more details).

EXCLUSIONS FROM EMANCIPATION.

Emancipation only relates to non-statutory age restrictions or statutory restriction where age is silent. Emancipation was the common law recognition that until this century it was not uncommon for minors to start to work independent of their parents at age fourteen (14) or younger. Thus it was and still is mostly a contract issue.
CRIMINAL JURISDICTION AND CHILDREN AND YOUTH JURISDICTION.

Thus the issue of emancipation has no effect on juvenile criminal law (42 Pa. C.S.A. § 6302, 6322) or Children and Youth Services (23 Pa. C.S.A. § 6303) jurisdiction, both are covered by statutes that clearly set a jurisdictional age of eighteen (18).

Thus it is possible for an emancipated minor to be under the jurisdiction of CYS. Emancipation does not, and can not, relieve a minor of supervision by CYS or a probation officer, both are given authority by statute which is independent of the issue of emancipation of the minor.

SCHOOLING AND EDUCATION.

Emancipation has no effect on education law due to the enabling statute (24 P.S. § 13-1327) which requires "parent, guardian, or other person having control or charge of any child or children of compulsory school age" to send that child or children to school. A parent can be required and even fined if an emancipated minor does not go to school. Compulsory school age is defined by 24 P.S. § 13-1326 as children between age eight (8) and seventeen (17). (An exception is made for home-schooling, but that is still education.)

Do note the 24 P.S. § 13-1327 does not require the parent or guardian to have control of the minor. The "control or charge" used in the act addresses who had control of children in addition to parents and guardians.

While the state statute only require attendance between the ages of eight (8) and seventeen (17), most school districts require attendance till graduation. Since such requirements exceed state law requirements such school districts rules are fully enforceable against the minor. FOR THIS REASON BEFORE YOU DECIDE TO DROP OUT OF SCHOOL PLEASE CONTRACT YOUR SCHOOL ON HOW TO DO SO. Furthermore we at AAAAAA strongly recommended you do complete High School . (Footnote 7)

AUTOMOBILES AND DRIVING.

Emancipation has no effect on driving an automobile. Driving is governed by the Vehicle Code. Under 75 Pa. C.S.A. § 6303 of the Vehicle Code a person over age Sixteen (16) will be treated AIn the same manner as an adult@ for an summary offense under the vehicle code.

One must be over eighteen (18) to drive after 11:00 PM.

ALCOHOL AND WORK.

Emancipation does not permit an emancipated minor to buy alcohol [47 P.S. § 4-493 (1)] or be employed by a tavern or other dangerous occupations [43 P.S. § 44]. Those require the minor to be over eighteen 18.

I have attached a copy of 43 P.S. § 44 so you can see the restrictions imposed by age on employment. Emancipation has no affect on the restrictions imposed by age in 43 P.S. § 44 . (Footnote 8)

VOTING.

Emancipated minors can not vote in an election, 25 P.S. § 2811 requires all voters to be over eighteen (18).

MILITARY SERVICE.

Emancipated minors can not enlist in the U.S. military until the minor is eighteen (18). High School graduates below age 18 may enlist with permission of their parents. At one time the U.S. Military did take other minors into the military, but always required parental permission (See Footnote 8). The federal acceptance of such non-high school graduates ended in the 1970s, because the military wanted high school graduates (See footnote 7 for more details).

POLICY OF AND THE ISSUE OF EMANCIPATION

Our policy at XXXXXXXXXXXXXXXX on emancipation of minors is driven by both the XXXXXXXXXXXXXXXXXXXXXX requirement that the minor "prove" they are emancipated and the need to provide such minors legal means to obtain such housing. XXXXX policy is to prepare affidavits signed by the minor (and if possible the parents) that the parents are not exercising any Acare, control or supervision" of the minor. To satisfy the requirement of some "juristic act" of the parent we try to state the facts of the case completely as it can be done in the affidavit. For example if the parent is no longer living with the minor, that is stated in the affidavit. If the minor is living with the parents we try to state facts that shows a "juristic act" and a lack of "care, control and supervision" by any adult.

Change of the Age of majority for Contracts is now Age 18.

While Pennsylvania still follow the common law rule that majority is achieve at age twenty-one (21), this Rule is defined more by the exception to age twenty-one (21) than by the Rule itself. This can be seen above where the cut off is almost always age eighteen (18).

Under 23 Pa. C.S.A. § 5101 any minor between the ages of eighteen (18) and twenty-one (21) can make a valid contract (or sue or be sued) as if he was over age twenty-one (21). Since contracts dominate our lives this change made most emancipations moot except for minors less than eighteen (18) years of age .(See footnote 10)

JUDICIAL FINDINGS OF EMANCIPATION.

Unlike some states, Pennsylvania does not have a procedure to be Emancipated by Court Action. While there is no stated procedure, if the affidavits mentioned above are not enough AAAAAA will file in Common Pleas Court for a Declaratory Judgment that the minor is Emancipated. A Declaratory Judgment of Emancipation is where the minor files an action against the minor=s parents that the minor is emancipated. It would be than up to a Judge to decide as a matter of law whether the minor is emancipated. Once that finding is done than the Judge would enter an ORDER declaring the minor an emancipated minor. That way the Minor would have a Court Order saying the minor is an emancipated minor.

Please note for a judge to find the minor to be emancipated the minor must not be under the care control or supervision of the minor's parents do to some "juristic act" of the parents. (The same test as stated above and in the P.L.E. on the next page).

Footnotes:

1. See page 8 of this paper.

2 Please note contracts can be classified into three categories:
I. Valid Contracts, enforceable by either party.
II. Void Contracts NOT enforceable by either party.
III. Voidable contracts which are enforceable by one party but not the other. Regarding un-emancipated minors all contracts entered into by un-emancipated minors are voidable, i.e. may be enforced by the minor against the other side, but can not be enforced against the minor.

3. At a minimum, absent some clear exception to the contrary, a person reaches the age of majority by act of law when that person reaches age Twenty One (21). 1 Pa. C.S.A. § 1991, 23 Pa C.S.A. § 5302. Marino vs Marino 601 A.2d 1240, 411 Pa Super. 424. As you will see in the rest of this paper most areas of the law grants the age of majority at Eighteen 18.

4. See the page 12 of this paper for a copy of the statute in question, which is 23 Pa. C.S. A. Section 5101. In most circumstances a person reaches the age of majority at age eighteen (18), but the general rule is still age twenty-one (21). I do not know of any area of the law that still looks at age twenty-one (21) as the age of majority, almost all have adopted age eighteen (18), but if an area of the law is silent, majority is twenty-one (21) not eighteen (18). Please note Alcohol is governed by its own statute which sets the minimum age limit at Twenty-one (21).

5.Please note Pennsylvania as of January 1st 2005 no longer permits Common Law Marriages. Under the Common Law a child as young as 12 could marry. That is no longer the law in Pennsylvania

6.See 18 Pa C.S.A. § 3206, for purposes of the "Abortion Control Act", age of majority is set at eighteen (18) but also permits a "Emancipated Minors" to obtain an abortion without permission of their parents. Please note under 18 Pa. C.S.A. § 3206 (c) if the minor's parents refuse consent OR the minor decide NOT to inform her parents, the minor can obtain permission from the Court of Common Pleas through an expedited petition system under Orphans Court Rule 16. The records of the petition must be confidential and sealed from the public. Thus the mere fact that a woman=s parents has refused permission to have an abortion (or the woman has refused to ask her parents for such permission, DOES NOT MAKE HER AN EMANCIPATED MINOR.
Please note do to Federal Funding Restrictions, AAAAAA can not participate in any such abortion petition, I only list it as an example of what is needed to be an emancipated minor.

7. One of the best reasons to complete high school is the experience it gives you. The best way to see this is to the explain the US Army recruiting scandal of the Mid 1970s. After the Draft was abolished in 1972, the US Army had a problem recruiting. As a result to get recruits, recruiters would take the test for recruits who could not pass the entrance test into the Army. After the scandal broke the Army found out many of the recruits had succeed in their military obligations while many had not. The Army did a study and determined only one factor set the recruits who fulfilled their military obligations apart from those that did not. How well the recruits did on the entrance exam had no bearing, how well they did in school, how intelligent their where, were not the difference. The difference was whether the recruit finished High School, not how well they did in High School, just finished High School. Basically the study pointed out that if you can take what occurs in most High Schools, you can succeed in life.

8. See Page 9 for the text of 43 P.S. § 44.

9. The states did take emancipated minors into the National Guard until 1947. In 1947 Congress required all members of the National Guard to have prior federal military experience so the Federal rules also applied to the National Guard.

10 See page 11 of this paper for the text of 23 Pa. C.S.A. § 5101. Now, theoretically, there may be an area of the law where majority is still age 21. While it appears that every possible law has been passed making majority at age 18 instead of age 21, they may be areas of the law where none of the above cited statutes apply and therefore the age of majority for that area of the law would be age 21. At present I do not see any area of the law which is not covered by the above statutes.

Pennsylvania Law Encyclopedia
PARENT AND CHILD
28 P.L.E. ' 19
Emancipation

A minor child is emancipated when he is released from legal subjection of his parents33. Emancipation results not from conduct of the child, but from some juristic act or other conduct of the parent from which the extinguishment of parental rights and filial duties may be inferred34. Emancipation from parents' service may be as perfect when children continue to live with parents as if they were living separately therefrom 35.

Child's retention of wages. The mere fact that a child is allowed to retain his own wages while living in the home of his parents does not of itself constitute emancipation of the child 36.

Failure to support and abandonment. The non-support of a minor child, when established by a court order of support, constitutes abandonment by the non-supporting parent, and is tantamount to an admission of the emancipation of the child37.

Attainment of majority. Ordinarily, a child is emancipated at the age of 21, even though he continues to live with his parents. However, if the child is incompetent when he reaches the age of 21, his status continues to be the same as that of an minor38.

Evidence and questions of law and fact. Emancipation of a minor child is not to be presumed, but must be proved39. The burden of establish the emancipation of a minor child by a parent is on the party asserting it40.

The question of whether a minor child has been emancipated by a parent is one of fact for the jury where the evidence on the issue is in conflict41. On the other hand, where the facts are undisputed, whether there has been an emancipation is a question of law42.


Footnotes:

33 Parks v. Parks, 135 A.2d 65, 329 Pa. 287 (1957)
Marino by Marino v. Marino, 601 A.2d 1240, 411 Pa. Super. 424 (1992)
Ross v. Com. Dept of Public Welfare, 431 A.2d 1135, 60 Pa. Cmwlth 403, (1981).
York County Probation Dept. v. Creech, 12 D & C 4th, (1991 York Co)
Zoba v. Zoba, 40 D & C 3d (1981).
34 Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A. 2d 426 (1948),
Trosky v. Mann, 398 Pa. Super. 369, 581 A2d 177 (1990)
35 Beaver v. Bare, 104 Pa. 58, 14 W.N.C. 53, 32 P.L.J. 161 (1883).
36 Dunks v. Grey, 3 F. 862 (1880).
Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A. 2d 426 (1948).
37 Com. v. Simpson, 49 Berks 144, (1957); Adoption of Budziak, 28 Erie 195 (1946).
38
Gaydoes v. Domabyl, 301 Pa. 523, 152 A. 549 (1931).
Colantoni v. Colantoni, 220 Pa. Super 46, 281 A2d. 662 (1971)
Com. ex rel Walsh v. Welsh, 222 Pa. Super 585, 296 A2d 891 (1972)
39 Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948);
Caddy v. Com Dept of Public Welfare, 14 Pa. Cmwlth. 317, 322 A2d 140 (1974);
Ross v. Com. Dept. of Public Welfare, 60 Pa. Cmwlth. 403, 431 A.2d 1135 (1981)
40 Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948).
41 Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948);
Beaver v. Bare, 104 Pa. 58, 14 W.N.C. 53, 32 P.L.J. 161.
Dunlevy v. Butler County Nat. Bank, 64 D. & C. 535, 62 York 117, 30 West. 155 (1948).
Mumma v. Friendenhart, 25 Dauph. 8, (1921).
42 Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A. 2d 426 (1948); Delaware County Nat. Bank v. Headley, 4 A. 464, 1 Sad. 499, 2 Cent. 374, 2 Del. 282, 3 Lanc.Rev.133, 17 W.N.C. 557.