What are Abandonment Laws?
Abandonment laws, in general, exist to protect the rights and interests of parties involved where there is a question about whether a person has legitimately abandoned property. An abandonment law can cover many types of property, but primarily deals with real estate, personal property, and sometimes intellectual property. While the coverage of these laws varies by state, most abandonment laws provide a means of quieting a title claim that would otherwise be clouded. Where a party can prove that the previous owner abandoned the property, the court may issue an order stating that no valid claim exists on the property , clearing the way for legitimate claims of ownership. Essentially, an abandonment law takes away the rights of the previous owner or owners.
In Pennsylvania, abandonment laws are found under Chapter 26 of the Consolidated Statutes, Title 42, Part II. The statute explains the context in which the court will deem a property abandoned, as well as the requirements for initiating abandonment proceedings. It also explains the process for petitioning the court to issue an order for quiet title on a property and what impact that may have for the property owner.
Pennsylvania Abandonment Laws
Abandonment laws in Pennsylvania differ somewhat from those in other states, particularly concerning the abandonment of minors. The Pennsylvania Uniform Child Custody Jurisdiction and Enforcement Act outlines specific guidelines for determining when a person has abandoned a child. Pennsylvania is one of the few states that does not recognize a custodial parent’s relocation as grounds for pursuing a request for abandonment. The state, however, considers it abandonment if a custodial parent voluntarily relinquishes his/her role, and such action is detrimental to the child’s best interests.
When an ex-spouse fails to pay alimony or child support, the custodial spouse may seek to terminate child custody. A parent does not have the legal right to relinquish a child’s custody to a willing and able third party. Since the Pennsylvania Family Act, 23 Pa.C.S. §5301 et seq. (2008), failed to amend the termination of parental rights statutes, the Pennsylvania Supreme Court continues to uphold the common law rule that voluntary relinquishment of a child is statutorily insufficient to automatically terminate parental rights.
Pennsylvania courts generally refuse to use abandonment as grounds for severing parental rights. Pennsylvania courts will not grant a petition for involuntary relinquishment unless the child’s whereabouts are unknown, but the non-custodial parent must exercise reasonable diligence in locating the child. The request has to be based on more than just allegations or rumors that have no basis in fact. The petitioner must prove that he/she became a stranger to the child by failing to maintain any meaningful relationship. Under Section 2511 of the Pennsylvania Adoption Act at 23 Pa.C.S. §2511, "abandonment" requires a showing that the natural parent failed to perform parental duties or routinely failed to exercise his/her right to visit the child, both of which are presumed if the parent failed to visit the child for a period of at least six months. Section 2512 defines "parental duties" as all financial contributions toward the care and maintenance of the children and taking action to communicate with and assist with their welfare and development.
The statute also applies to relinquishment in the case of stepparent adoption. If the parent with custody remarries and seeks to relinquish parental rights, the other parent must petition the court to terminate his/her parental rights before the new spouse can adopt the child. Section 2503(5) of the Adoption Act orders the court to inquire into whether the petition was granted by voluntary relinquishment or court termination, and it allows parents to release the child for adoption unless the court terminates his/her rights. The parent must show that the relinquishment was voluntary, generally through either an affidavit signed in front of witnesses or through testimony that he/she did not act under fraud, coercion, or undue influence.
Common Instances of Abandonment in Pennsylvania
Abandonment can rear its head in many ways under Pennsylvania law. Abandonment may arise in cases concerning rental properties, where the tenant has vacated the property and the landlord cannot determine whether or not the tenant is gone for good. It also may arise in cases involving real property, where the seller of a house has "abandoned" the transaction by failing to meet conditions in a purchase agreement. Abandonment issues may come up in family law cases too – where one parent has given up their rights over a child entirely, or just in terms of payment of child support. And sometimes, abandonment comes up in real property cases, where someone has abandoned a pet animal (an issue that we will not elaborate on here).
In real property situations, PA real estate law governs the question of whether a person has abandoned an item, called "personalty" under PA law. The key is whether the owner intended to give that item up. If not, then it has not been abandoned.
Considerations for Tenants
As mentioned above, abandonment issues may arise in tenant/landlord relationships, especially auto leases and apartment rentals. The question is whether the landlord can deem the property abandoned if the tenant fails to make payments for a specified period of time or does not reside in the property. If so, the landlord may be able to clear out the abandoned items via "forcible entry and detainer" for unpaid rent.
In practice though, landlords should remember that they cannot take actions that might violate the law. That means that landlords must actually notify tenants of their intention to evict by state-sanctioned means before taking any further steps to take possession of the property, like actually evicting them. This is true even if rent is past due.
Property owners selling their primary home should know that the situation might be different when selling real estate to another party. In that circumstance, the abandonment of items is governed by the terms of the sales contract. Under a real estate sales contract, a seller is typically obligated to ensure that the sale property is vacant at the time of settlement. If there are items remaining in the property, the seller is often required to have them removed, and a buyer has the option to void the agreement without penalty or "specific performance."
Tactics to Abandonment Issues
In order to determine whether an item has been abandoned, a property owner usually has to provide notice demanding that the owner remove his or her items. Owners under contracts can pull out of the deal if the other party has failed to remove those items. Failure to do so may even constitute fraud or misrepresentation, depending on the facts. Sometimes, the issue really lies with the ability to have the other party remove the items after notice. For instance, if the property buyer has moved out, but continues to pay the purchase price, the contract may roll on, and the buyer may simply not be physically capable of removing the items.
Legal Implications of Abandonment in Pennsylvania
Abandonment under the Crimes Code is a felony of the third degree. If a person is found guilty of abandoning their children they will be put in prison for up to 7 years. If there are multiple counts of abandoning their children, the sentences can be served consecutively, meaning that the individual could spend decades behind bars.
Possibly more important than potential incarceration is the reality that once someone is legally found guilty of abandonment their children are likely to be removed from their home, their care and their possession. This is the reality that a parent must face and deal with.
Abandonment is also an issue that can arise in child custody proceedings. This is not the same as filing criminal charges against someone for abandoning a child. This is done while an action for custody is being dealt with in the court system. A parent is asserting that another parent has knowingly and willfully given up their parental claim to the child or neglected their duties to the child. This is something that will get raised quite often in custody cases.
Since the parent giving up their parental claim to their child, therefore formally abandoning them, is something to be determined by the Family Division of the Court . A statute must be cited and statutory language must be provided to the Court outside of the motions and pleadings provided to the Court. Further, an evidentiary hearing is held to determine if, a) a parent has abandoned their child, or b) if abandonment is in the best interest of the child.
If a parent is found to have abandoned their child in a proceeding before the Family Division of the Court the Court will issue an Order regarding custody and/or child support. This will stand as the final decision of the Court in the decision making process. If it is appealed then the appellate court will act to determine whether the custody order made on the abandoned parent is sound or not. Since the case was not tried before the appellate court, but rather the family division of the court system, the appellate court can only determine whether the family division of the court came to a decision acceptable under the law. Therefore, if the Court found the facts and the law acceptable under the statutes rule and the order made to be sound, the appellate court will not disturb the findings.
When to Seek Legal Counsel for Abandonment Issues
Enforcing your rights under Pennsylvania’s abandonment laws may require the assistance of an experienced family law attorney. A Pennsylvania family lawyer can assess the unique circumstances of your situation and help you determine the best strategy for maximizing your chances for success. For those who cannot afford the cost of representation following abandonment or a similar instance of wrongdoing, legal aid organizations may be able to provide assistance. Most such groups require applicants to meet specific economic criteria in order to qualify for their services, so very thorough preparation of your statement of need is important in maximizing your chances for success. Whether you can afford to pay for direct representation or not, you may also benefit from accessing records compiled by third-party resources. Educational institutions often house detailed information about matters such as legislation, public policy analysis, and helping to match those in search of legal assistance with corresponding lawyers. At the end of the day, there are many potential avenues for help in pursuing the full benefits of Pennsylvania’s abandonment laws. Enacting the right strategies can help you take full advantage of the state’s family law code and finding an appropriate pennsylvania family law attorney can assist you in pursuing a successful outcome.
How to Avoid and Address Abandonment
Now that you understand what a bona fide termination of parental rights is, the question becomes, how do you prevent, and if necessary, address a claim of abandonment when seeking to adopt your step-son or daughter? While not required, the email correspondence ways a good faith effort to avoid an abandonment claim. A simple note to your spouse stating "hey, I’m going to adopt Billy and I’m going to ask mom for her consent. I’m looking forward to going to court with you to finalize the adoption." will go a long way. If a parent is out of state, perhaps a text message or social media post would be enough to put the parent on notice. What do you do if you are the one accused of abandonment? First , it is important to note that the legal standard is what is abandonment (legally and under the law). Your subjective belief or comments on social media are not enough. According to Pennsylvania law abandonment occurs when the parent has evidenced a settled purpose to forego further parental duties. If a parent tacitly encourages their child to call another parent "dad" or "mom" this could lead to abandonment. Anything which conveys a blatant indifference to the parental relationship can also give rise to abandonment. E.g., pace of one contact per year, negative comments about the parent, new marriage or family. If you are presented with an abandonment issue – speak to your attorney. The focus is on the parent’s acts and omissions. If an individual has remarried and/or had additional children, this does not negate their parental responsibilities, including, but not limited to the duty to pay child support (if applicable), attempt to see the child, etc. We represent many clients who are dating and/or remarried, but that has not stopped their right to share temporary or even shared custody.