The Breakdown on Abandonment Laws in Utah
Abandonment laws in Utah refer to a specific set of statutory rules that dictate the circumstances under which a parent can lose their rights to a child without being found unfit. While in most cases, grounds for termination of parental rights and relinquishing a child for adoption stem from proven unfitness of a parent, Utah also recognizes abandonment as valid grounds for these processes. In these situations, the law effectively punishes parents who refuse to take responsibility for their children, and aims to protect the child in their future by enacting a proper termination process and a substitute parent.
As codified into law, the state of Utah defines the abandonment of a child as a "failure to maintain personal, nurturing , and affirmative contact with a child and reasonable degree of interest in the child’s welfare by a biological parent, adoptive parent, or legal guardian." This is a fairly difficult standard to prove, as there are many factors involved with just what qualifies as "personal, nurturing, and affirmative contact." Some factors that may be considered by the judge when deciding whether parental behavior rises to the level of abandonment include the following:
Even if a court finds that abandonment has occurred according to the above criteria, the parent can redeem themselves in the eyes of the court by redeeming their contact with the child within the next six months. In these cases, the courts will often give the parent the benefit of the doubt and will support their attempts at reunification with the child.
The Legal Ramifications of Abandonment
In the state of Utah, the legal consequences of abandonment are substantial. If a parent, spouse, and/or child is left without just cause or excuse, a court may interpret such an action as the crime of abandonment. The same interpretation can be used for property and other assets that are deserted by their owner.
Child Abandonment and its Consequences
Under Utah law, the law of abandonment, referring to children, is when the parent leaves the child with another person for an unlimited period without providing the necessary means that will allow the other individual to support and care for the child. For instance, when a person attempts to abandon a child, such an individual will be committing a third degree felony. Likewise, abandonment is also recognized as a third degree felony when the person who abandons the child does not try and contact a different family member, such as a grandparent or brother/sister, to provide assistance.
Parental Rights Termination
The court system in the state of Utah permits termination of parental rights for the following reasons:
-Abandonment
-Parent unfit or incompetent
-Child neglected or abused
-Child is in foster care for period of six months or longer
Sometimes these cases are complex and may require a legal professional to review and provide legal counsel and representation.
Child Custody and Visitation Rights
In addition to child abandonment, child custody and visitation in Utah is covered under the law. A parent who has left his or her child without adequate care, and whose primary purpose is to not allow the other parent access to the child, may be said to have abandoned his or her parental rights. Even if entry into the house was permitted, if it is found that the child is neglected, the other spouse may be granted sole legal custody of their child.
Conclusion
When abandonment with children is suspected, a parent may contact the appropriate authorities for intervention. Most law enforcement agencies have received specific training that deals with familial issues and child abandonment.
Examining Child Abandonment Laws
A more specific law that handles abandonment issues is Utah Code § 78B-6-302. It states that a person is unfit to have physical custody or legal custody of a child if the person "engaged in, knowingly directed, knowingly facilitated, or knowingly allowed" one or more specified actions that demonstrate that person being unfit. One of the actions listed under that statute is if the parent abandoned the child. Utah Code § 78B-6-201(4) defines abandonment as "the voluntary relinquishment of all parental rights to a child by the parent." Therefore, it’s not enough just to leave a child for a little while; it needs to be continuous and show that all rights to the child are relinquished by the parent. If you show that you are not likely to have any interaction with the child, the court may terminate your parental rights in the child.
In addition to abandonment, does the parent fail to provide financial support for the children without an ongoing, significant, and acceptable reason? Abandonment can also be shown through failure to pay for child support.
Another factor that can factor into an unfitness finding is a court-ordered debt to the child that was willfully failed to be paid. Additionally, Utah Code § 78B-6-501 dictates that a parent’s parental rights can be terminated if they engage in a pattern of domestic violence. Domestic violence can show poor parenting from that specific parent.
Abandonment in Utah: Divorce and Custody Issues
When it comes to divorce and custody cases in Utah, abandonment can play a significant role. A spouse may leave the marital home, but that does not mean they are abandoning the family in a legal sense. They are still entitled to a divorce or representation in any pending divorce actions if they have been served a notice to appear in court.
Under U.C.A. § 30-3-5 the Utah Family Code defines "willful neglect," "abandonment," and "failure to provide" in terms of the abandonment of minor children:
"(1) No parent of an unmarried person under 18 years of age shall be entitled to notice of, or to be heard in, any proceeding to adopt such unmarried person under 78-30-1 unless the parent has:
(a) contributed monetary support within 6 months next preceding the filing of the adoption complaint; or
(b) maintained substantial and continuous contact including contribution of care and maintenance of the child; or
(c) filed within three months next preceding the filing of the adoption complaint a notice of intention to commence adoption proceedings with respect to the child.
(2) Failure of any parent to provide monetary support, substantial and continuing contact, or contribution of care and maintenance during the above time periods in (1) shall be considered willful neglect, failure, or abandonment of the child for the purpose of this section." It should be noted that code specifically separates "willful neglect", "abandonment", and "failure to provide," so the presence of any of these factors may be sufficient for the court to deny a parent visitation or custody.
For the purposes of divorce, the most important Utah code regarding abandonment is U.C.A. § 30-3-1 that states that courts shall grant divorce under the following conditions:
"(1) The district court has jurisdiction to grant a divorce or annulment of a marriage, or to provide for the custody (including guardianship), support, and education of the children of the marriage, in the following cases:
(a) Either party:
(i) has been domiciled in the state for three months before the commencement of the action;
(ii) is a resident of the state at the time the action is commenced, when the other party is not a resident; or
(iii) is a resident or nonresident, when the other party has been abandoned or deserted for one year immediately before the commencement of the action.
(2) Abandonment under Subsection (1)(a)(iii) is established by evidence of conduct indicating that the abandoning party has intentionally severed the marital relationship by intentionally rendering it impossible for the other party to continue in the marital home."
Utah law does not require a spouse to leave the home in order to file for divorce. They may choose to leave due to "spousal abuse" or other domestic violence. In some cases, it may be the husband that leaves the home, and in others, it is the wife that leaves the marital residence. Even though the physical residence may be different, the court will see both spouses as residents of Utah for the sake of divorce and custody cases.
Addressing Property and Abandonment
Abandonment of property in Utah is governed partly by our statutes and partly by common law. In Utah, an abandoned property is defined as a "personal property that has been discarded by its owner which he/she no longer wishes to claim, and as to which the owner has no present intent to retain ownership or possession . . . ." Whether abandoned or not depends on the owner’s intent.
Our statutes specifically address the following categories of abandoned property: Utah Code § 38-11-102 sets forth the following regarding abandoned property: "A person that is a party to the purchase, sale, rental, or lease of property that has been left at an address or in the custody of that person by its former owner shall request directed-restraint authority under Section 38-11-104 before disposing of the property if:
- (1) it appears to the person that the property has been abandoned by the former owner of the property;
- (2) the person has maintained care, custody , or control of the property for a period of more than 30 days; and
- (3) the value of the property is less than the threshold for directed restraint for the type of property set forth in the regulation issued under Title 63A, Chapter 1a, Department of Corrections, Section 63A-1a-110, Intergovernmental Relations."
Utah Code § 38-11-104 provides:
"(1) Subject to Section 38-11-106, if a person requests directed-restraint authority under Section 38-11-102, the administrative law judge shall issue the authority if the person shows that the following three conditions are met:
(a) the property was abandoned by its former owner;
(b) the person has maintained care, custody, or control of the property for a period of more than 30 days; and
(c) the value of the property is less than the threshold for directed restraint for the type of property set forth in the regulation issued under Title 63A, Chapter 1a, Department of Corrections, Section 63A-1a-110, Intergovernmental Relations.
(2) If directed-restraint authority is requested under Section 38-11-102, the person shall not dispose of the property before issuance of directed-restraint authority."
Defenses for Accusations of Abandonment
The burden of proof is on the party who claims abandonment. They are the ones who must prove that the absent party intended to abandon the property and that the property was at some point in time possessed by them. Under the statute, a property owner must show that they intended to operate the property and that they had moved onto the property as if they were living there. A good way to defeat any claim of abandonment or adverse possession is to have evidence of some sort to back up a claim that you were not absent and that you never intended to abandon the property. Sometimes this means hiring an attorney to go into court by yourself. You can have in your favor a rebuttable presumption that you did not abandon the property. An example of a rebuttable presumption could be that if you drove by the property and you are able to prove that you did at least once. This is not enough evidence to prove that you did not possess the property but it gets you started down the road. If your property is occupied by someone else, your best defense is that you have not relinquished your possessory right (you have a right to it whether or not you live there) and a current exclusive physical presence. If you are absent from the property there are plenty of other arguments that you can make. One is that you have a possessory interest in some other place. Some examples would be another home that you own and maintain elsewhere, a trailer, condo, flat, hotel room or even a tent that you occupy. A seasonal residency may also work because you may be just absent from the property for a long period of time. The law also likes to know your intent as to whether you are permanently leaving the property or just temporarily leaving the property. The difference is whether or not you gave up your possessory right. If you were actively preparing to move back into the property but left for the day and the home burned down then you did not relinquish the right to possession of the property. Other arguments are that no one else intended to claim the property. If that is the case then the party cannot prevail. The more proof you have contrary to the plaintiff’s actions the better off you will be in the litigation.
What to Do If You’re Facing an Accusation of Abandonment
It is important that you seek legal counsel immediately if you are accused of or believe that you may be accused of abandonment. Due to the potential serious consequences associated with abandonment, including a finding of neglect or abuse, the urgency is heightened. A grave determination of abuse or neglect could lead to the removal of your child from your care and could lead to allegations of removing your children from school, whether it is at the end of the school year or at any time during the school year.
If you are contacted by Child Protective Services, and if you believe an investigation of your family may be underway, you should contact a skilled Utah family law attorney as soon as possible. An attorney will be able to advise you on secrets and lies, and what you should and should not share with CPS, as most importantly, your legal rights will be at issue.
In addition, it is critical that you employ the services of an attorney who has experience in any potential court attendance and with trial work. This will ensure that your legal issues are portrayed in a way that are most beneficial to your personal legal needs.
Latest Developments in Utah Laws
Ongoing legal interpretations continue to clarify Utah law. For instance, in 2021 the Utah legislature passed a law providing time frames that will govern the period of time that will result in presumed abandonment of personal property. The statute will not apply to real property such as land or structures. The statute defines the term "personal property" to include items such as furniture, clothing, vehicles, animals, provisions, and money.
The law provides that one year after a public entity takes possession of unclaimed personal property it may be declared abandoned, provided that notice is provided. For property that has an owner identified , but that owner fails to make contact with that public entity for over one year after the date that the entity took possession, the property may be declared abandoned if notice was provided to the owner at the time the property was taken, and notice was also published in a newspaper. In these situations, the statute does not require the public entity to additionally notify the owner after one year. This law may provide guidance to landlords and tenants regarding landlord’s potential liability to tenants for failure to store personal property for a specific amount of time.