Family Law

The Effects of Abandonment on Your Marriage and Family

By Kristina Otterstrom, Attorney

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What Constitutes Abandonment?

Abandonment typically falls into one of two categories: constructive or physical. In other words, a spouse doesn’t have to physically leave to have effectively abandoned the family. Constructive abandonment is when one spouse withholds the essentials of marriage, like affection, intimacy, and financial support from family members.

When most people think of abandonment, they picture a physical desertion. But even physical abandonment doesn’t take place instantly. Generally, abandonment doesn’t happen when one spouse leaves for a week, or even a month, after a heated fight. Moreover, one month of unpaid child support won’t constitute constructive abandonment either. The desertion must go on for a long period of time, and the spouse must intend to leave permanently.

The laws defining abandonment (also called desertion in some sates) vary from state to state. In states like Utah, abandonment occurs when one spouse willfully deserts the family—both physically and financially—for one year or more. Other states have even longer time periods before one spouse’s absence can be construed as desertion. But parents deployed on military duty—even for a year or more—won't be found to have abandoned their families. A judge will weigh the individual circumstances of each case before deciding whether abandonment occurred.

How Does Physical Abandonment Affect Custody?

One spouse’s abandonment can have an impact on your divorce case, but it will have an even bigger impact on custody. When one spouse physically leaves children behind with the other parent, it creates a “de facto” custody situation. What this means is that the parent who remains behind with the children automatically has custody of the couples’ children. A court doesn’t order de facto custody, it arises by default, or as a result of one parent’s abandonment.

The parent who has de facto custody during the other parent’s absence can capitalize on the situation by seeking a divorce and sole legal and physical custody of the children. Temporary custody caused by one parent’s abandonment can quickly turn into a permanent custody order. Moreover, if the absent parent eventually wants custody of the children, it will be hard to convince a judge that the parent and child share a strong bond and that the parent will adequately provide for the child’s needs and stability. One parent’s short-term abandonment can alter the course of custody for a child’s lifetime.

What is Constructive Abandonment of a Child?

A parent commits constructive abandonment by refusing to provide a child with adequate care, supervision, child support or parental contact for an extended period of time. A judge will consider either parent’s constructive abandonment of a child when assessing parental fitness and custody.

Can I Have My Ex’s Parental Rights Terminated for Abandonment?

A parent can ask a court to terminate a non-involved parent’s rights based on constructive or physical abandonment. For example, parents who avoid contact with their children and refuse to pay child support can have their rights terminated. Terminating parental rights is a serious and permanent decision, and one that courts don’t take lightly. A missed visit or a few months of unpaid child support won’t lead to an automatic termination of parental rights. However, a parent’s habitual refusal to have any contact with the child or any acts of child abuse or endangerment may provide the basis for a permanent termination of rights.

Questions for Your Attorney

  • My child’s father refused to be at my child’s birth and isn’t listed on my child’s birth certificate. At what point can I get his parental rights terminated for abandonment?
  • My spouse deserted my children and me two years ago, but continues to send money for support. I want to get a divorce and file for custody of my kids. Do my spouse’s actions constitute abandonment?
  • I have a custody order designating me as the non-custodial parent to my kids. However, my children live with me full time and my ex rarely tries to see them. At what point can I fight for full custody based on her abandonment?
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