Minors – Emancipation of Minor – South Dakota
Emancipation is express when it is by agreement of both parents if living, and if not, the surviving parent and the child. Any such express agreement of emancipation shall be presented to the circuit court of the county in which the child resides for approval. The court shall issue a declaration of emancipation if it finds the emancipation would not be contrary to the child’s best interest. The declaration of emancipation and a copy of the agreement shall be filed by the clerk of courts.
The legal duty of an emancipated child to his parent is the same as that of a child who has reached his majority.
Any person under the age of eighteen years who:
(1) Has entered into a valid marriage, whether or not such marriage was terminated by dissolution; or
(2) Is on active duty with any of the armed forces of the United States of America; or
(3) Has received a declaration of emancipation pursuant to § 25-5-26; is an emancipated minor.
An emancipated minor shall be considered as being over the age of majority for the following purposes:
(1) For the purpose of consenting to medical, chiropractic, optometric, dental, or psychiatric care, without parental consent, knowledge or liability;
(2) For the purpose of his capacity to enter into a binding contract;
(3) For the purpose of his capacity to sue and be sued in his own name;
(4) For the purpose of his right to support by his parents;
(5) For purposes of the rights of his parents to his earnings, and to control him;
(6) For the purpose of establishing his own residence;
(7) For the purpose of buying or selling real property;
(8) For the purpose of ending all vicarious liability of the minor’s parents or guardian for the minor’s torts; and
(9) For the purpose of enrolling in any school or college.
Nothing in this section may be construed to relieve the minor’s parents or guardian from any liability for the torts of an emancipated minor if the liability arises out of an agency relationship, out of the operation of a motor vehicle as provided in § 25-5-15 or some other principle of law other than the parent-child relationship.
A minor may petition the circuit court of the county in which he resides for a declaration of emancipation. The petition shall be verified and shall set forth with specificity all of the following:
(1) That he is at least sixteen years of age;
(2) That he willingly lives separate and apart from his parents or guardian with the consent or acquiescence of his parents or guardian;
(3) That he is managing his own financial affairs;
(4) That the source of his income is not derived from any activity declared to be a crime by the laws of the State of South Dakota or the laws of the United States.
Before the petition is heard, such notice as the court deems reasonable shall be given to the minor’s parents, guardian, or other person entitled to the custody of the minor, or proof made to the court that their addresses are unknown, or that for other reasons such notice cannot be given. If a minor is a ward or dependent child of the state, notice shall be given to the appropriate state agency.
The court shall sustain the petition if it finds that the minor is a person that fulfills the requirements of this section and that emancipation would not be contrary to his best interest.
If the petition is sustained, the court shall forthwith issue a declaration of emancipation, which shall be filed by the clerk of court.
If the petition is denied, the minor may appeal to the Supreme Court.
If the petition is sustained, the parents or guardian may appeal to the Supreme Court if they have appeared in the proceeding and opposed the granting of the petition.
A declaration is conclusive evidence that the minor is emancipated.
A minor declared emancipated under § 25-5-26 or 25-5-19 or his conservator may petition the circuit court of the county in which he resides to rescind the declaration.
Before the petition is heard, such notice as the court deems reasonable shall be given to the minor’s parents or guardian or proof made to the court that their addresses are unknown, or that for other reasons such notice cannot be given. However, no liability may accrue to any parent or guardian not given actual notice, as a result of rescission of the declaration of emancipation, until such parent or guardian is given actual notice.
The court shall sustain the petition and rescind the declaration of emancipation if it finds that the minor is indigent and has no means of support.
If the petition is sustained, the court shall forthwith issue a court order rescinding the declaration of emancipation granted under § 25-5-26, which shall be filed by the clerk of court.
Rescission of the declaration of emancipation does not alter any contractual obligations or rights or any property rights or interests which arose during the period that the declaration was in effect.
A declaration of emancipation obtained by fraud or by the withholding of material information is voidable. The voiding of any such declaration pursuant to this section does not alter any contractual obligations or rights or any property rights or interests which arose during the period that the declaration was in effect.
A proceeding under this section may be commenced by any person or by any public or private agency. Notice of the commencement of such a proceeding and of any order declaring the declaration of emancipation to be void shall be consistent with the requirements of § 25-5-27.