Most people think length of time is the overriding factor in determining child abandonment. Although it is one consideration, it is not the only issue the court considers during a child custody case.
Timeframe and Intent
The test the court applies to the alleged abandonment of a child is the intent of the departed parent. For example, if a custodial parent must leave his or her child for an indefinite period of time due to a verifiable emergency, the court will not likely consider it abandonment, even if weeks have gone by. But if a custodial parent simply up and leaves with no explanation, courts have deemed that departure abandonment after just a day or two.
However, some general principles and common factors are considered:
Key Factors:
- Failure to Provide Support:
- This includes both financial support and providing for the child’s basic needs (food, shelter, clothing, medical care).
- Lack of Contact:
- A parent’s failure to maintain regular communication and visitation with the child is a significant factor.
- Intent:
- While some states may consider the parent’s intent, often, the focus is on the parent’s actions (or lack thereof).
- Duration:
- A prolonged period of absence and lack of support is usually required. The length of time varies by state.
- State-Specific Laws:
- It is crucial to understand that child abandonment laws are determined at the state level.
Court Procedure
Under the California Family Code, there are three circumstances under which a proceeding may be brought for abandonment:
- The child has been left without provision by the child’s parent or parents.
- The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.
- One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.
If a custodial parent appears to have abandoned a child, the other parent may request the court to change custody, including granting emergency custody on a temporary basis. The court will consider how long the custodial parent has been gone, the expressed intent of the custodial parent in leaving, and where the children have been since the parent left.
Common Misconceptions
If a custodial parent appears to have abandoned a child, it is not always the case that the non-custodial parent will be granted full custody. The court may elect to approve or reject a custody change based on a wide range of factors, including whether there is a case of recurring abandonment. This is when the custodial parent routinely leaves a child for indefinite periods of time without a valid reason.
Some people think that a parent who abandons a child will have criminal charges brought against them. Under California Family Code Section 7822, the parent will usually not be automatically criminally charged. In fact, criminal charges are more often brought against a parent who fails to pay child support. While California does have a crime called “Child Abandonment,” it is not the same as family law child abandonment. In other words, a parent not communicating with a child for an extended period is not committing a crime.
••Minella Law Can Help••
If you’re seeking to terminate parental rights due to abandonment, it’s in your best interests to consult with an experienced California family law attorney who can advise you what steps need to be taken. Reach out to us for your complimentary consultation today at 619.289.7948
