Overview of Abandonment under NC Law
North Carolina Abandonment laws refer to a set of laws that apply to a specific legal concept known as abandonment. Abandonment broadly refers to the state of having no claim to something. For example, a person may abandon a child or a pet, or even property, be it personal or real estate. So North Carolina laws governing abandonment would apply to a party who has no further claim on the aforementioned items.
In a North Carolina context, "abandonment" is a term applied to the termination of marital rights following a separation or physically leaving behind an individual without prior legal documentation. While there may be other uses for the term, for our purposes, we are concerned primarily with laws governing children or spousal possessions.
As it relates to property, abandonment laws limit the ownership of tangible property to the original owner if the property has been discarded and there are no intentions by the owner to reclaim it.
But in family law, particularly with respect to divorce proceedings, it is not as simple as all that. For some reason, abandonment laws can have an adverse effect on a party seeking the dissolution of their marriage, but with some advanced knowledge on the subject, you can better protect you and your family’s interest.
The North Carolina divorce laws pertaining to abandonment can be a bit tricky for a party filing for divorce. This applies to both spouse and non-spouse filings as abandonment constitutes grounds for both legal separations.
The burden of proof , however, is on the claimant to provide proof of such abandonment, and absent that evidence, North Carolina abandonment laws dictate the presumption of "presumed abandonment." Essentially, this means the claimant must provide testimony or evidence proving a lack of spousal or parental support, a lack of care, or a lack of reasonable mental or physical health as the result of such a breakdown in the relationship. However, both spouses must agree if they wish to file for divorce on such grounds.
Presumed grounds for abandonment laws is in place to protect a claimant from having to prove such abandonment if they are able to demonstrate a "voluntary act" on the part of the spouse—such as leaving the home without obtaining the consent of the both parties involved. Abandonment by one party will often lead to such grounds for presumption.
Child custody laws, on the other hand, also apply to abandonment when one parent has given up his or her natural right to a child. If a parent does so, they will relinquish their right to custody within the state of North Carolina. A parent’s right to custody is terminated on the basis of abandonment when they fail to care for a child within a dependency period as defined by state law—which we will go over in greater detail in our next blog. Also to be discussed is the hardship that the abandonment laws apply to property rights, although it is a little more straightforward than child custody and separation issues.
What Does Property Abandonment Entail in NC
Under North Carolina law, a property may be considered abandoned when there has been an abandonment or discontinuation of the trust property and, additionally, the conditions under which such property has been held must have been met. N.C.G.S. § 41-30 (1953). These conditions include the duration of the abandonment or discontinuation of the trust for a period of 20 years, N.C.G.S. § 41-30(1), or a period of 30 years, N.C.GS. § 41-30(2), at which time the property then becomes distributable to any claimant adversely possessing the premises. An adverse possessor claiming adverse possession within this time period in either the 20 year or 30 year period must "show a clear and unequivocal repudiation of the title of the true owner and that the land is held openly, notoriously, exclusively, and continuously under claim of right for the statutory period." Benefield v. Crumpler, 112 N.C.App. 885, 889, 436 S.E.2d 884, 886 (1994) (citations omitted). A property may also be considered abandoned if, for five years, a landowner does not make any payments regarding the property or does not make any payments not required by the land contract. Id. Pursuant to N.C.G.S. § 41-30(3), if property is deemed abandoned, a claimant may get a judgment to divest the title of all other claimants and restore it in the claimant.
In addition, a "decree of abandonment shall have priority over all other liens, including those acquired after the attempted prior sale of the abandoned property, and all claimants." N.C.G.S. § 41-30(5). Once an abandonment of land is determined, a life tenant has the right to receive "the present worth value of the highests annual rental value," and, if unproductive land, the 5% of the money to be made for farming, for the rights of possession prior to the abandonment as well as "interest on any investment exceeding the value of the crops and proceeds thereof. 1957 N.C. Sess. Laws c 229 § 1 or N.C.G.S. § 41-30(6). If property is abandoned for a period of 20 years, the person against whom such action was brought will be assumed to be the owner of land, unless otherwise shown, as the heir, assignee, or devisee of such person, with all the right, title, and interest of such person, subject to a lien for any prior tax displayed on such land. Id. If the claim process is not initiated within 60 days of the date of the abandonment order, claimants will be barred from bringing legal action against the abandonment order. N.C.G.S. § 41-30(7).
Claimants "are bound by the findings and conclusions of the court" with regard to whether or not the property has been abandoned, and even if the court’s decree may have been "improperly entered or voided" or have "failed to meet procedural rules," courts will treat the order "as final and binding." N.C.G.S. § 41-30(8).
Spousal Abandonment in Family Law Matters
While it’s often discussed in the context of criminal law, the abandonment of family is very much a family law issue as well. Abandonment affects divorce proceedings, child custody cases, and child custody and support modifications.
Abandonment As a Basis for Divorce
Abandonment is one of the twelve valid reasons to file for divorce in North Carolina. In fact, the statute that governs the grounds for divorce in North Carolina specifically mentions abandonment. However, it defines abandonment as willfully abandoning a family and leaving a wife and children in a manner "which exposes them to natural consequences of such abandonment." A husband or wife can be guilty of abandoning a family even if the spouse who left the home did so while the other spouse was not at home and without knowledge of the plan to leave the home. What matters is that one spouse left the home.
Abandonment may also be alleged as proof of the ground of "indignities" for the purpose of a one-year separation period for divorce. Indignities are defined as "a course of conduct on the part of the other spouse, which renders free and equal society unbearable, ridiculing, contemptuous, humiliating, or otherwise degrading."
Abandonment and Child Custody
Abandonment can be a basis for terminating parental rights. Termination terminates the parent-child relationship, meaning that the parental duty for care and control of the child is transferred to another person, and with it all of the rights and responsibilities of the relationship.
Grounds for termination of parental rights include:
The likelihood that a child will be adopted in the near future is a key element of a termination of parental rights case. The court must be satisfied that the child will be adopted.
Abandonment and Alimony
While not a specific component of alimony in North Carolina law, spousal abandonment and alimony are linked. One spouse’s ability to receive alimony depends on all of the circumstances of the marriage, and includes whether the spouses shall be entitled to live separate and apart. The purpose of alimony is to assist a dependent spouse with their transition from married life to single life.
Abandonment Laws Relating to Children
In North Carolina, the legal definition of child abandonment requires specific actions by a parent or person with custody over a minor child for a certain period of time.
The statute states that "[a] parent of a child is guilty of abandonment of the child if the person (1) while having the legal responsibility for the care and custody of the child, either willfully abandoned the child or was guilty of acts showing an indifference to the forms of parental care and control necessary for the child’s physical, mental, moral, or emotional health."
Additionally, the statute states that "[a] parent of a child 6 months of age or older is guilty of abandonment of the child if the parent causes the child to reside in a place, such as a hotel or other place of business, and the parent fails to provide the child financial support or communication."
Essentially, child abandonment occurs when a parent, after having proper care and control over a child, withholds his or her care from the child (or fails to provide sufficient care). The abandonment can be based on the actions of the parent, or lack thereof.
The statute further states that "[a] parent of a child 6 months of age or older is guilty of abandonment of the child if the parent regularly fails to pay a reasonable portion of child support either (1) while the child is living in a placement made by the court after a hearing at which the parent received notice and an opportunity to be heard or (2) for at least six consecutive months prior to the filing of a petition for termination of parental rights, while the child is not residing with the parent."
It is important to note that abandonment of a child, where remedy is sought via termination of parental rights, requires the petitioner to prove an act of abandonment in addition to the ground of willfully ignoring or failing to discharge parental responsibility (discussed below).
The remedy for abandonment of a child is typically termination of parental rights, but can also include an action for custody or support.
In considering a defense to a child abandonment claim, it is important to be aware that a parent cannot successfully allege that he has abandoned his or her child if the other parent is withholding the child. The statute expressly states that a parent is not guilty of abandonment if the child is "unavailable for or is unworthy of support and care."
Further, under the statute, "abandonment by a parent" does not include instances in which the child is given or placed with another person to be cared for, if the parent intends to return within a short time and <i>does return within a reasonable time.</i>
Under North Carolina law, "abandonment" is a ground for termination of parental rights. Under the 2009 Out-of-Home Rate Study by the North Carolina Department of Social Service (yes, the government did a study on the rates for out-of-home care), the average reimbursement rate for out-of-home care was $247 per day.
Assuming a Northern European Labor Day holiday in Germany, a parent could be charged several hundreds of thousands of dollars for abandonment of a child.
Tenant Abandonment and Your Rights as a Landlord
After a tenant has abandoned a unit, landlords have the right to enter the unit, remove any personal effects and mitigate their damages in reasonably fashion, while still maintaining their duty to mitigate their damages by acting as a reasonable, moderately prudent person would in the same situation. Tenants can usually only be found liable for abandoning a lease if they have expressly told their landlord they were leaving or combined other acts that amount to an implied abandonment of the unit. However, "fly by night" tenants that come into town for short periods to rent a unit and cause havoc often leave behind a number of items that they often know will become property of their landlord once they vacate the rental unit .
The landlord has an obligation to attempt to return the property within 90 days of it being abandoned (in some cases, return may not be required as some courts hold that the landlord has no duty to return the abandoned property). This means that if the item is of value, the landlord should make an effort to return the property via regular mail (or another method of sender confirmation). Otherwise, the personal property can be thrown out, but the tenant must be able to demonstrate that the disposal of the personal property was unreasonable. In North Carolina, a landlord must give the tenant 10 days’ notice prior to disposing of any property. The landlord must make a reasonable effort to contact the tenant to remain tenant for the personal property. If after notice to the tenant at their last known address and at the property, the landlord does not get a response within 10 days, the landlord may call the local sheriff to remove the items.
Abandonment: Further Legal Concerns and Remedies
The legal ramifications of being found guilty of abandonment in North Carolina can be significant. Once a court determines that abandonment has occurred, the implications often extend beyond a single right or property. For example, the court may assess the impact of the abandonment on an estate, such as the right to inherit or participate as a beneficiary. In some cases, abandoning a spouse can have implications on issues such as equitable distribution or alimony. As much as the consequences can extend, questions will generally arise as to whether the abandonment of a particular property or right resulted in legal loss.
Where appropriate, a person may have the ability to reverse or limit the effects of the original abandonment under North Carolina law. For example, a parent who claims to have abandoned their children with the intent of relinquishment may later be able to assert a right to full custody or visitation upon a showing of a change in circumstances. Abandonment of a child by a parent can implicate several different legal issues concerning adoption, child custody, and more. Once a court has entered a judgment on abandonment, a person may also bring a motion for relief from the judgment under N.C. R. Civ. P. 60. In general, a court will view such requests as an opportunity for justice where the granting of the request would serve public policy interests, such as ensuring the continuance of a bloodline.
Where an abandonment involves adverse possession, the elements needed to overcome the application of N.C.G.S. § 1-39, the statute of limitations, are the pursuit of the landowner’s right "on the land for such length of time as to keep it in the landowner’s mind and give him such notice of an adverse claim as fairly to arouse his attention and put him on guard; and that the possession of the defendant was exclusively under a claim which must fairly have given the owner of the land notice of the fact that the defendant was claiming some right . . .." Whitacre P’ship v. Biondi, 129 N.C. App. 65, 69 (N.C. Ct. App. 1998). Once a period of time has passed, the statute of limitations "cannot be invoked by him as a bar to recovery, unless he has been misled by the defendant’s wrong." Phillips v. McKenzie, 207 N.C. 617, 621 (N.C. 1932).
In direct contrast to the lengthy discussion associated with adverse possession, the equitable doctrine of abandonment is relatively straightforward. "The object of the law in relation to abandonment is to compel the owner to exercise his right, and to make him know that he is without choice when danger threatens." Galloway v. Rucker, 203 N.C. 172 (N.C. 1936). "The factual issues presented by an alleged abandonment raise triable issues for the jury as to whether there has been an abandonment." Matter of B.T., 163 N.C. App. 503 (2004).
Consult an Attorney
In the context of an abandonment claim in North Carolina, consulting with an attorney may be essential. An attorney can assess the facts of a particular case and determine the extent to which they are likely to support a viable claim. An attorney can also review any legal documents that may be relevant to the situation (for example, the separation agreement itself) and can advise clients about the relative risks and potential rewards of moving forward with an abandonment proceeding. Presenting an argument for abandonment can be complicated; it is the most fact-dependent of the claim types, and the conduct in question can be subject to multiple interpretations. For example, in some situations, even if a spouse is shown to have abandoned the marital home for a significant period of time, the question of abandonment may ultimately depend upon why he or she did so . If the spouse left because the other spouse was engaging in abusive or other unacceptable behavior, then the court may find that an abandonment defense would be inappropriate. On the other hand, a spouse dishonored a marriage by leaving in order to pursue an affair, the court may well find that abandonment is justifiable. An attorney may also help a client understand the social and legal consequences of an abandonment claim. In some instances, clients may be able to achieve their goals through divorce or other remedies without needing to pursue an abandonment claim. In other instances, it may be worth pursuing an abandonment claim if it can be expected to provide clients with the right results. An abandonment claim will typically not have a direct impact on the division of marital assets or the custody of children. However, a finding by the court that one spouse has abandoned the other may affect spousal support (alimony) or child support.