An Introduction to Abandonment Laws
Abandonment laws in California are generally applicable to all kinds of property, not just real property, and can sometimes apply to personal property as well depending on the situation. Generally speaking, if someone abandons property, the property is no longer theirs. A person may abandon their personal property in California if they physically leave it with no intention of having it again. In other words , you can abandon property by giving it away or giving up all future control over that property. For real property, California abandonment laws apply when a person stops living there and no longer intends to return. These laws are often an issue for landlords and tenants, but can also arise in other situations. Abandonment of real property can also occur when a tenant goes into foreclosure or is evicted from their residence.
What are the Types of Abandonment in California?
California law recognizes several forms of abandonment. Abandonment of property, abandonment of children, and abandonment of a pet are all considered separate legal matters in the state of California.
A person abandons property in California by failing to maintain possession or control over the property. In essence, abandonment of property is the relinquishment of all claims to the property by its owner. Property that has been intentionally lost or forgotten is not considered abandoned under California law. For property to be found abandoned, the owner of the property must have intentionally relinquished possession or must have knowingly relinquished possession without taking reasonable steps to recover possession.
Abandonment of children is one of the most serious types of abandonment under California law. A parent who abandons a child can face a variety of different consequences depending on the facts of the case. The major factors that contribute to the criminal implications of abandoning a child include the age of the child, the intent of the parent, and whether the parent actively did anything to prevent the child from returning home.
Pet abandonment is another type of abandonment under California law. Abandonment of a pet in California is considered a misdemeanor crime. Pet abandonment encompasses the act of deserting pets on the street or near animal shelters, leaving animals tied up outside of stores, abandoning them in vacant buildings, and other similarly cruel acts of abandonment.
Property Abandonment Law
Abandonment of property under California law is defined as the "voluntary relinquishment of all right, title, claim and possession of property with the intent to prevent its acquisition by any other person." Cal. Civil Code Section 1185. To constitute a complete abandonment, there must be nothing left of the property and the intention to abandon must be clear and unequivocal. Mere non-use or a transient absence by a property owner is not sufficient to prove intent to abandon. See In the Estate of Steinmann (1949) 34 Cal.2d 805.
Rental agreements often contain terms dealing with the abandonment of the property by the tenant. For example, if the tenant has paid no rent for more than a month, or if the tenant has gone without notice for a reasonably long period of time and is acting in a manner inconsistent with the peaceful enjoyment of property, the landlord may seek to abandon the lease. Cal. Civ. Code Section 1951.2-4. With regard to commercial leases, California courts have held that evidence of no rental payments for 30 days raises a presumption that the tenant has no intent to continue its tenancy, and therefore the lease may be terminated on these grounds. The landlord need not wait 30 days for nonpayment of rent before it can take steps toward recovery of the property – the landlord may act sooner but it must allow the tenant 15 days to cure the breach or quit the property. NNN Theatre Corp v. Orange Cty. Props. II, 33 Cal. App. 4th 683 (1995). California law makes no differentiation between abandoned personal property and abandoned real property, even though landlords of abandoned real property are less likely to face legal opposition when they retake the abandoned property.
Child Abandonment Law
Since the passage of Penal Code §§ 278.5 and 271.1, the California Legislature has sought to clarify the circumstances under which a person may be charged with abandonment of child. In order for a parent to be entered into the California Department of Justice Child Abduction Section’s "California Child Abduction Warning List", that parent must have been issued a warrant by a California state judge or magistrate. Prior to the warrant being issued, a police officer must submit a "Request for Criminal History Information" in order for the state to identify the parent being sought by the court.
Once the requesting officer receives the response from the Department of Justice ("DOJ"), the requesting officer must submit an "Application for Issuance of a Warrant". After the judge or magistrate signs the warrant, the DOJ will add the parent to the "California Child Abduction Warning List". In order to validate the warrant for entry onto the California "Child Abduction Warning List", the warrant must bear the signatures of both the issuing magistrate and the city/county clerk. The warrant must also include a statement that the Department of Justice has been requested to enter the warrant into the California Law Enforcement Telecommunications System ("CLETS") statewide wanted persons file. However, the parent must have been convicted of a violation of Family Code § 283, 273a, 270, 278, 278.5, or 271.1, or of having an order for child support, and having willfully failed to comply.
Beyond the circumstances that constitute a "Warrant Abandonment", a "Capture Abandonment" is recognized as well. A person who willfully abandons a child by leaving a child in a situation where they are likely to suffer serious bodily injury or emotional harm may be guilty of abandonment. Upon conviction, this crime is a felony punishable by imprisonment in the state prison for two, three, or five years.
An individual who commits the offense of child abandonment is subject to further prosecution for Child Abduction upon the second conviction. The term "child abduction" is defined as the intentional removal of a child from the other parent or legal guardian, with intent to deprive that person of his or her right of custody. When a California resident instituting a child abduction proceeding in another state, the California courts may deny him or her any remedy as a sanction for not instituting the proceeding in California – that person shall be fined $ 2,000.00.
The California Family Code provides a penalty of $ 1,000.00 and/or four (4) days in jail for the first conviction and a penalty of $ 5,000.00 and/or one (1) year in jail for the second / subsequent conviction for child abandonment. If ‘the child is returned to the custodial parent or legal guardian prior to conviction of the offense’ there shall be no punishment.
However where the child wanted is less than thirty (30) days of age, the punishment now becomes the base of 16 months, 2 or 3 years, with aggravated penalties potentially enhancing it to 2, 4 or 6 years. The existing law authorizing 180 days in county jail as a maximum penalty was revised to one year in county jail. This revision was made to align the penalty with the maximum terms applicable to related child welfare laws, like Family Code Section 215. Accordingly, a parent or guardian intending to or having absconded with a child thirty (30) days old or less across state lines to avoid visitation with the left-behind parent or other legal guardian now faces the threat of prison time for violating Penal Code Section 278. For each additional child abducted, 2, 4, or 6 years may be added to the penalty for abducting a child in the State of California under Family Code § 3024.
Pet Abandonment Law
In California, pet abandonment is strictly prohibited, and is another scenario that may carry a significant penalty. There are various policies and practices in place to protect pets that are abandoned by their owners. The first thing to note is that it is a crime to abandon an animal. It is unethical, and it is against the law. The penalty for abandonment carries a misdemeanor level penalty. You could be looking at a $500 fine, or even a year in prison. In most cases, there is a small fine , but there have been many instances in which much larger penalties have been doled out to repeat offenders.
There are also laws in place to keep pet owners from abandoning an animal as a means of avoiding certain responsibilities. The law explicitly states that any animal that is abandoned by its owner will be considered property of the state after 10 days of being abandoned. What this means is that after the animal has been abandoned, the state can designate new ownership of that animal to a new party. Furthermore, if you abandon an animal and stay in California, the state has the right to seek recovery of pet boarding costs from the original owner in the form of a civil lawsuit.
None of these laws necessarily prevent people from abandoning their pets, but they do highlight exactly why it is a poor choice that can ultimately wind up costing you a lot of money.
Legal Abandonment Consequences
Legal Consequences of Abandonment in California
Depending on the degree of abandonment you are found guilty of, penalties vary. Going through a divorce with children can be even more complicated when the sense of abandonment comes into play. If you have children with your spouse, expect the subject to arise during the proceedings. You may be dealing with a criminal charge for abandonment if you have no intention of returning and no plan to provide for the wellbeing of the other person or child. In addition to damages through a civil lawsuit, you could face a felony conviction for leaving a spouse unable to care for herself or children alone. This is a formal complaint following a divorce or legal separation, not a family law matter. The MLMU – (emergency Missing Person) law is intended to prevent abandonment and applies only to children. It offers a warning to suspect abandonment. If authorities determine that the alleged parent has no intention of returning or that the alleged parent bolted to avoid making child support payments, the alleged parent can be put in jail for failing to pay. However, if there is a process in place through Family Court for visitation or shared custody, then these statutes may not apply. Children are often involved in parental abandonment – and appear to be the lesser offense of the two – spousal or child abandonment. Parents who intend to leave but do not arrange for financial support of the children can be charged with fines and imprisonment. Those who merely intend to leave, but don’t have the means to support the child, are considered "willfully" abandoning their child and can face criminal charges. The penalties for either abandonment crime in the state of California include misdemeanor jail terms of up to one year. Fines can range from $1,000 to $1,500. Note: California law considers a forfeiture of wages/benefits and cannot be used as a form of punishment for a refusal of benefit. A 2013 case cites: Even though a parent suffers a loss due to the separation from a child, they cannot qualify for a court-approved, extenuating circumstance, even for hardship. For spousal abandonment, a spouse may lose rights in the divorce or secession, even if the abandonment is okay on the victim’s side. California Family Code Section 2626 governs the abandonment of both spouses, but under California Civil Code Section 2062, parents can be prosecuted along with their children for abandonment. Some abandonment issues may be associated with the Missing Person Act and the California Highway Patrol Board. The law gives parents – or legal guardians – the right to immediately report an abandoned child and is intended to close a gap in the Foster Care System.
Legal Exceptions and Defenses to Abandonment
While abandonment is a strict liability offense in California, there may be some legal defenses or exceptions available in limited circumstances. The key case analyzing these defenses is the California Supreme Court decision in People v. Allen (1986) 42 Cal.3d 122. That case outlined three types of circumstances where an abandoned vehicle might not present any danger, and therefore would not subject the driver to a $100 to $500 penalty.
(1) Lawful Parking: The fact that the motor vehicle is parked on the shoulder of a freeway pursuant to a lawful stop made by a law enforcement officer may reduce the offense from a misdemeanor to an infraction.
An additional state statute provides that if the car is registered to another individual who was not present at the time of parking, then the parked motor vehicle creates no danger. See Vehicle Code section 22524(b). This law is helpful for individuals who are loaning or renting their vehicle to another and that person commits an offense under the Vehicle Code.
(2) Unusable Motor Vehicles Abandoned in Designated Ditch: The second exception applies to owners who abandon unusable motor vehicles on a highway. Government Code section 7260(a) permits them to do so if the ditch at the roadside is "a freeway or other highway with an adjacent ditch or leveled area not intended for parking or vehicular traffic" and "the motor vehicle is complete but in a condition not usable safely on the highways without repairs." To qualify as unusable, a vehicle must "be missing one or more of its essential parts or components, such as the engine…. [This] does not include parts or accessories which are not essential to the safe operation of the vehicle, such as radio, heater, air-conditioning, sleeper compartment, or other conveniences." (Government Code section 7260(c).)
Legally defined "highways" includes "all roads and streets at the urban and rural fringe, including village green space, where access can be provided," according to People v. Allen. "It includes main streets through small hamlets, urban and suburban connector roads (such as Merriman Road in this case), and rural roads within the urban service area of large metropolitan areas."
(3) Emergency Vehicle Stopped in Response to Emergency Message: The third exception defines an emergency vehicle as "any local service vehicle as defined [under Vehicle Code section 165], any vehicle subject to Division 12.5 (commencing with Section 2400) of the Vehicle Code, or any law enforcement or fire organization vehicles within the area of jurisdiction in a military facility…." (Government Code section 7260(d).)
A car left unattended on a freeway or highway by a police officer does not create a public nuisance, even if it poses a threat to motorists, because it is a lawful part of the normal functioning of law enforcement and not some other alternative reason. (People v. Allen (1986) 42 Cal.3d 122, 144.)
How to Stop and Handle Abandonment
Staying in compliance with the law can enable individuals to avoid facing an abandonment charge in the first place. If someone is struggling to meet the terms of a court order or agreement, he or she should consult an experienced attorney as soon as possible. An attorney can assist in petitioning the court for an amendment, modification, or termination of the original order to make it more feasible to comply—or to explain circumstances that may establish legal defenses to an abandonment allegation.
One of the important defenses to the abandonment charge is that the other parent had reason to believe it was acceptable to leave his or her child with another family member or caregiver for an extended period of time. This is why parents in California who are considering a trial separation, divorce, or relocation with a child should sign a temporary agreement regarding child custody and visitation. When the parties agree on formal , written terms, no room exists for miscommunication or malfeasance regarding the terms and conditions of child custody and visitation. If a parent parallel is parenting with a trusted relative or family friend, the parent may ask the other parent to sign a temporary agreement regarding the child’s whereabouts, so that if the other parent tries to claim abandonment, the custodial parent will have appropriate written evidence of the other parent’s acceptance of his or her choice regarding the temporary caregiver.
When faced with an allegation of abandonment, the best way to protect one’s parental rights is to hire an experienced custody and family law attorney. An attorney can ensure that the accused parent properly responds to the accusation and hires the right experts to examine and present the child’s best interests to the court.