How Can I Have My Daughter Live With a Close Friend?
Full Question:
Answer:
It may be possible to appoint a guardian or file a petition for emancipation. To be emancipated in Texas, a 17 year-old minor must be self-supporting and living apart from the parent(s). The parent must verify the petition for emancipation. Once emancipated, the child is considered an adult.
Eligibility of an emancipated minor will be governed by the contract terms of each insurer. Typically, an emancipated minor no longer qualifies as a dependent on a parent's health insurance plan.
A child may typically no longer be declared as a dependent in the event she/he is emancipated. In addition to a relationship test, the IRS requires the person claiming the dependent to provide at least half their support. Please see the article below for a discussion of the tax implications of guardianship.
See also:
http://www.avvo.com/legal-answers/can-a-guardian-declare-tax-exemption-for-a-minor-i-5354.html
http://www.educationgrant.com/2010/01/06/dependent-student-vs-independent-student-status-on-the-fafsa/
Please see the following Texas statutes for applicability:
§ 31.001 FAM. Requirements
(a) A minor may petition to have the disabilities of minority removed
for limited or general purposes if the minor is:
(1) a resident of this state;
(2) 17 years of age, or at least 16 years of age and living separate
and apart from the minor's parents, managing conservator, or guardian;
and
(3) self-supporting and managing the minor's own financial affairs.
(b) A minor may file suit under this chapter in the minor's own
name. The minor need not be represented by next friend.
§ 31.002 FAM. Requisites of Petition; Verification
(a) The petition for removal of disabilities of minority must state:
(1) the name, age, and place of residence of the petitioner;
(2) the name and place of residence of each living parent;
(3) the name and place of residence of the guardian of the person and
the guardian of the estate, if any;
(4) the name and place of residence of the managing conservator, if
any;
(5) the reasons why removal would be in the best interest of the
minor; and
(6) the purposes for which removal is requested.
(b) A parent of the petitioner must verify the petition, except that if
a managing conservator or guardian of the person has been appointed, the
petition must be verified by that person. If the person who is to verify
the petition is unavailable or that person's whereabouts are unknown, the
amicus attorney or attorney ad litem shall verify the petition.
§ 31.003 FAM. Venue
The petitioner shall file the petition in the county in which the
petitioner resides.
§ 31.004 FAM. Representation of Petitioner
The court shall appoint an amicus attorney or attorney ad litem to
represent the interest of the petitioner at the hearing.
§ 31.005 FAM. Order
The court by order, or the Texas Supreme Court by rule or order, may
remove the disabilities of minority of a minor, including any restriction
imposed by Chapter 32, if the court or the Texas Supreme Court finds the
removal to be in the best interest of the petitioner. The order or rule
must state the limited or general purposes for which disabilities are
removed.
§ 31.006 FAM. Effect of General Removal
Except for specific constitutional and statutory age requirements, a
minor whose disabilities are removed for general purposes has the
capacity of an adult, including the capacity to contract. Except as
provided by federal law, all educational rights accorded to the parent of
a student, including the right to make education decisions under
Section 151.003(a)(10), transfer to the minor whose disabilities are removed
for general purposes.
§ 677A PROB. CODE Written Declarations by Certain Parents to Appoint
Guardians for Their Children
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
(a) A written declaration appointing an eligible person to be guardian
of the person of the parent's child under Section 676(d) or 677(b) of
this code must be signed by the declarant and be:
(1) written wholly in the handwriting of the declarant; or
(2) attested to in the presence of the declarant by at least two
credible witnesses 14 years of age or older who are not named as
guardian or alternate guardian in the declaration.
(b) A declaration that is not written wholly in the handwriting of the
declarant may be signed by another person for the declarant under the
direction of and in the presence of the declarant.
(c) A declaration described by Subsection (a)(2) of this section may
have attached a self-proving affidavit signed by the declarant and the
witnesses attesting to the competence of the declarant and the execution
of the declaration.
(d) The declaration and any self-proving affidavit may be filed with
the court at any time after the application for appointment of a
guardian is filed and before a guardian is appointed.
(e) If the designated guardian does not qualify, is dead, refuses to
serve, resigns, or dies after being appointed guardian, or is otherwise
unavailable to serve as guardian, the court shall appoint the next
eligible designated alternate guardian named in the declaration. If the
guardian and all alternate guardians do not qualify, are dead, refuse
to serve, or later die or resign, the court shall appoint another
person to serve as otherwise provided by this code.
(f) The declarant may revoke a declaration in any manner provided for
the revocation of a will under Section 63 of this code, including the
subsequent reexecution of the declaration in the manner required for
the original declaration.
(g) A declaration and affidavit may be in any form adequate to clearly
indicate the declarant's intention to designate a guardian for the
declarant's child. The following form may, but need not, be used:
DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE
EVENT OF MY DEATH OR INCAPACITY
I, _________, make this Declaration to appoint as guardian for my
child or children, listed as follows, in the event of my death or
incapacity:
_____________________________ __________________________________
_____________________________ __________________________________
_____________________________ __________________________________
(add blanks as appropriate)
I designate _________ to serve as guardian of the person of my (child
or children), _________ as first alternate guardian of the person of my
(child or children), _________ as second alternate guardian of the
person of my (child or children), and _________ as third alternate
guardian of the person of my (child or children).
I direct that the guardian of the person of my (child or children)
serve (with or without) bond.
(If applicable) I designate _________ to serve as guardian of the
estate of my (child or children), _________ as first alternate guardian
of the estate of my (child or children), _________ as second alternate
guardian of the estate of my (child or children), and
_________ as third alternate guardian of the estate of my (child or
children).
If any guardian or alternate guardian dies, does not qualify, or
resigns, the next named alternate guardian becomes guardian of my
(child or children).
Signed this _________ day of _________, 20__.
____________________________________
Declarant
________________________________ ___________________________________
Witness Witness
SELF-PROVING AFFIDAVIT
Before me, the undersigned authority, on this date personally
appeared _________, the declarant, and __________ and _________ as
witnesses, and all being duly sworn, the declarant said that the above
instrument was his or her Declaration of Appointment of Guardian for
the Declarant's Children in the Event of Declarant's Death or
Incapacity and that the declarant had made and executed it for the
purposes expressed in the declaration. The witnesses declared to me
that they are each 14 years of age or older, that they saw the
declarant sign the declaration, that they signed the declaration as
witnesses, and that the declarant appeared to them to be of sound mind.
_________________________________
Declarant
___________________________________ _________________________________
Affiant Affiant
Subscribed and sworn to before me by _________, the above named
declarant, and ________________ (names of affiants) affiants, on this
___ day of _________, 20__.
_________________________________
Notary Public in and for the
State of Texas
My Commission expires:
_________________________________
(h) In this section, "self-proving affidavit" means an affidavit the
form and content of which substantially complies with the requirements
of Subsection (g) of this section.
(i) As an alternative to the self-proving affidavit authorized by
Subsection (g) of this section, a declaration of appointment of a
guardian for the declarant's children in the event of the declarant's
death or incapacity may be simultaneously executed, attested, and made
self-proved by including the following in substantially the same form
and with substantially the same contents:
I, ___________________________, as declarant, after being duly sworn,
declare to the undersigned witnesses and to the undersigned authority
that this instrument is my Declaration of Appointment of Guardian for
My Children in the Event of My Death or Incapacity, and that I have
made and executed it for the purposes expressed in the declaration. I
now sign this declaration in the presence of the attesting witnesses
and the undersigned authority on this ____ day of _______, 20__.
__________________
Declarant
The ____________________ undersigned, ___________________________ and
___________________________, each being 14 years of age or older, after
being duly sworn, declare to the declarant and to the undersigned
authority that the declarant declared to us that this instrument is the
declarant's Declaration of Appointment of Guardian for the Declarant's
Children in the Event of Declarant's Death or Incapacity and that the
declarant executed it for the purposes expressed in the declaration.
The declarant then signed this declaration and we believe the declarant
to be of sound mind. We now sign our names as attesting witnesses on
this ____ day of __________, 20___.
________________________
Witness
________________________
Witness
Subscribed and sworn to before me by the above named declarant, and
affiants, this ____ day of _______________________, ____, 20__.
__________________________________
Notary Public in and for the State
of Texas
My Commission Expires: ___________
(j) A declaration that is executed as provided by Subsection (i) of
this section is considered self-proved to the same extent a declaration
executed with a self-proving affidavit under Subsection (g) of this
section is considered self-proved.