Duhaime's Law Dictionary


Abandon Definition:

A giving up, a total desertion, an absolute relinquishment.

Related Terms: Abandonment, Derelict

A legal term used in family law in regards to a child, in property law in regards to a chattel or land, and in residential tenancy where it is alleged that a tenant abandoned rented premises.

Child

Judges will often quote the words of the British court in Mitchell v Wright:

"[T]he words abandoned or deserted the child ... point at the parent leaving the child to its fate." 

In re a child known as "Kea", the Court of Appeals of Georgia, under the pen of Ruffin, highlights the significance of the term in the context of parental rights:

"Under the two-step inquiry for terminating parental rights, a court must first determine whether there is clear and convincing evidence of parental misconduct or inability.

"If such misconduct or inability exists, the court must then determine whether termination is in the best interest of the child.

"The first prong of the test may be established by showing abandonment.

"To find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, so far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims."

In a case known as In re Justice, appellate court Mr. Justice Levin wrote, albeit with extensive reference to the Connecticut statute:

"A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child....

"Abandonment focuses on the parent's conduct.

"Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare."

In child protection cases, any abandonment of a vulnerable child is equated with neglect sufficient to merit government intervention.

In R v Holzer, a mother who left a 15-month child unattended in an unheated truck for three hours, while she played bingo, was held to have abandoned her child for the purposes of the child protection statute.

"The outside air temperature was around -14° Celsius.... A bottle of frozen liquid medication was found behind the seat of the truck.

"The actions of the accused ... were likely to leave the child exposed to risk without protection. It had no protection at all against the risk of abduction, and only limited protection, its clothing, against the risk of freezing. I find that she abandoned the child."

In an adoption case, Re Sharp, Justice Verchere adopted these words:

"Abandon in its ordinary sense means ... to give up or renounce; to desert; leave without help."

In McCullough, another adoption case, Justice Tyler of the Texas Court of Appeal wrote:

"The term abandon generally means to give up absolutely, to forsake entirely, to renounce utterly, to relinquish all connection with or concern in, or to desert ... a renunciation, quitting, and relinquishing, so as to have nothing further to do with a thing, or the doing of such actions as are inconsistent with the holding of it....

"[T]he abandonment of a child such as is contemplated in certain adoption scenarios consists of an absolute relinquishment of the custody and control of the child and the willful purpose and intention to relinquish the benefit of the rights to which the parent is entitled under the law."

Personal Property

In a good example of a judge apparently not remembering what he had written earlier, Justice Tyler of the Texas Court of Appeal, this time in a property case, (Ingram) defined the same term (abandon) using different words, although, in the result, not markedly off the earlier version given in McCullough (op. cit.):

"The word abandon means a giving up, a total desertion, an absolute relinquishment. Abandonment includes both the intention to forsake or abandon and the act by which such intention is carried into effect.

"It is essential, in order to raise the issue of abandonment, that there must be a concurrence of the intention to abandon and an actual relinquishment of the property, so that it may be appropriated by the next comer.

"An individual may abandon his personal property.

"Upon abandonment, the property is no man's property until reduced to possession with intent to acquire title.

"Title to such property vests in the first person lawfully reducing the same to possession. Therefore, it is possible to take possession of abandoned property without committing a theft or intending to commit a theft."

Real Property

The allegation of an abandon of real property is an often hotly contested issue in courts of law. It is relevant to claims based on adverse possession but also in bankruptcy situations.

In re Bennett (a bankruptcy case), Justice Williamson wrote:

"Abandonment of a homestead occurs when the owner removes from the home with no intention of returning, takes up permanent abode at another place and pursues a livelihood there."

In an easement case (Minerva Partners), the Court of Appeals of Michigan noted that:

"[A]n easement may be lost through abandonment. An easement is abandoned when the owner of the easement relinquishes it with the intention of releasing his or her right to the easement."

See, also, the remarks in the Legal Definition of Abandonment.

Residential Tenancy

In Romanowski, the landlord took the position that the tenant had abandoned the leased premises and on that basis, locked him out. But in spite of some gestures leading to the appearance of moving out, the rent had been paid in advance.

"[A] reasonable person would not conclude that the Romanowskis had surrendered possession of the dwelling unit prior to being locked out."

REFERENCES:

  • Ingram v. State, 261 S.W. 3d 749 (Court of Appeals of Texas, 2008)
  • In re Bennett, 395 B.R. 781 (United States Bankruptcy Court, Florida, 2008)
  • In re Justice, 959 A. 2d 1063 (Appellate Court of Connecticut, 2008)
  • In re Kea, 663 S.E. 2d 822 (2008)
  • McCullough v. Godwin, 214 S.W. 3d 793 (2007). See also Schmidt v Stearman, 253 S.W. 3d 35 (Court of Appeals of Arkansas, 2007): "Property is abandoned when it has been thrown away or its possession voluntarily forsaken by the owner."
  • Minerva Partners, Ltd. v. First Passage, 731 N.W. 2d 472 (Court of Appeals of Michigan, 2007)
  • Mitchell v. Wright (1905), 7 F. (Ct. of Sess.) 568
  • Motando v Canada, 2005 FC 416
  • Romanowski v. Giodano Management Group, 896 N.E. 2d 558 (Court of Appeals of Indiana, 2008)
  • R v Holzer, 63 C.R. (3d) 301 (Alberta Court of Queen's Bench, 1988)
  • Re Sharp, 38 W.W.R. 257 (British Columbia Supreme Court, 1962)

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