Is Criminal Conduct Alone Abandonment, or Grounds For Termination Of Parental Rights?

There are cases in the Utah Court of Appeals and in the Utah Supreme Court that indicate criminal activity resulting in incarceration can be evidence of abandonment. The reason for that is if a parent intentionally engages in criminal conduct likely to result in their incarceration, they are unable to function in the role of a parent while they are incarcerated. They are intentionally engaging in conduct that may result in their inability to act as a parent, if they are caught. There were two cases in 2005 that indicate that incarceration does not excuse failure of a parent to make contact with the child, and that incarceration can result in the destruction of the parent–child relationship. That finding would depend on the extent of the incarceration, and what quality and quantity of contact was made between parent and the child during that time.

What If Court Orders Or Interference From The Other Parent Impede A Parent’s Contact With Their Child?

There was a case called PH, in which there was a no contact in order. In 2003, the Utah Court of Appeals ruled that the court is mindful of the existence of the no-contact order against the father. However, he has appealed at numerous hearings, with court-appointed counsel and interpreter, but has not petitioned nor moved to modify, stay, or vacate the no-contact order. Father has made little to no effort to restore physical or legal custody to himself for a period in excess of six months.

This case is similar to 2007 case IB. That case stands for the proposition, among other things, that the court could infer abandonment because even though a father had a child protective order filed against him, he never attempted to resolve that dispute so that he could see his child. He never went to court to request visitation, to attempt to set aside the child protective order, or to seek court orders allowing him to have any contact with his child. Even if there is a child protective order against a party, that does not mean they cannot abandon their child. Instead, they must do everything they can, including seeking help from the court, to have contact with the children.

There is another case called PRE, which is a 2009 Utah appellate court case, and in that case the mother was actually held in contempt for interfering with the father’s parent time. However, the Utah Court of Appeals nevertheless affirmed the findings that the father had abandoned the child. In that case, the Court ruled that the mother’s less-than-perfect behavior in this regard does not negate the fact that the father failed to communicate with the child on his own, such as telephoning the child himself or attempting to visit the child in person. Mother’s behavior does not negate the father’s unwillingness to change his approach to parenting, in order to find more effective avenues for such communications. In other words, if you sit on your hands and do nothing about interference or about other court orders, or if you fail to file appropriate motions to remedy this, then you may be abandoning your child.

Are There Examples Where Parents Or Guardians May Unintentionally Abandon a Child?

Some parents may claim that they did not intentionally abandon their child: parents who allowed another parent to interfere with their parenting time, allowed court orders to excuse themselves from attempting to resolve court orders. The courts would disagree and say that they intentionally sat on their hands and did nothing, or intentionally engaged in criminal conduct resulting in their incarceration, or intentionally engaged in whatever conduct or lack of conduct that they engaged in, which resulted in abandonment. Parents do not have to intend abandonment for a court to find abandonment. They only have to intend their action or lack of action.

Abandonment could occur unintentionally, if you are in a coma or a political refugee in another country and literally can’t get back home. Otherwise, people generally will be held responsible for their action or lack of action.

How Do You See Child Abandonment Used In Divorce, Custody, Or Paternity Cases?

The term “abandonment” is often used in a divorce, custody, or paternity case to demonstrate neglect by one parent as a justification for giving custody to the other parent. Additionally, abandonment can be used in divorce, custody, or paternity cases for the non-abandoning parent to petition to terminate the parenting rights of the abandoning parent, so that a stepparent may adopt the child.

What Happens To The Child Once Abandonment Is Alleged?

What happens to a child after abandonment is alleged can be a perplexing problem for the court. It somewhat depends on whether a petition to terminate parental rights and adopt has been filed. If the custodial parent is alleging abandonment by the non-custodial parent but is not seeking termination of parental rights, then the most typical scenario is for a reintroduction plan to be instituted. This scenario is a period of the time where a child is slowly reintroduced to the parent, if that is deemed to be in the best interests of the child. However, if the non-custodial parent is irresponsible, sporadic, and unreliable in exercising visitation, the court may decide that the continual reintroduction followed by periods of non-visitation is further traumatizing the child. The court may suspend visitation, unless and until the abandoning parent has gotten their act together. On the other hand, if a petition to terminate parental rights and adoption has been filed, the court may choose to suspend or severely limit any contact between the child and the abandoning parent, until it’s determined whether the abandoning parent is going to remain in the child’s life.

After all, it would be harmful to the child to re-establish that relationship, just to terminate it a few months later. The court has a difficult balancing act to determine how much contact a child should have with the abandoning parent in a termination case.

For more information on the effects of Criminal Conduct on Parent-Child Relationships, Child Abandonment, and Termination of Parental Rights, an initial consultation is your next best step. Contact Us online or call us to arrange a consultation at (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children