Basics of Abandonment Law In South Carolina

Introduction to Abandonment Law in South Carolina

Abandonment laws serve the important purpose of protecting children and vulnerable adults from a harmful situation. In South Carolina, an action for abandonment legal defines the action as "the voluntary relinquishment of all parental rights and claims to a child by the parent or parents with the intention of totally severing the tie between the parent or parents and the child, which is followed by the constituting of another family relationship of permanent and continuous duration, terminating all parental obligations to the child by the parent or parents, and the assumption of those obligations by the other family." This definition can seem convoluted but it is very specific when discussing a legal matter involving the abandonment of a child.
Abandonment in the legal sense means to intentionally give up all rights and responsibilities to a child in such a way that the parent no longer has custody of the child and cannot have that custody restored as a result of a legal action. This does not mean that an action has to be brought in court for a child to be abandoned. The law also allows for actions "taken by a parent or caregiver evidencing an intent to forego all parental or caregiver responsibilities and relinquish all parental or caregiver claims to a child; and (b) which is followed by circumstances showing the child is being deprived of a stable , permanent home environment."
In South Carolina, the law recognizes that a child can have two different families at the same time. For example, one family may decide to abandon a child, leaving the child with another family. In this case, it is possible to reclaim the minor child. The ultimate question is whether the abandoning parent or caregiver was intentionally relinquishing all parental or caregiver claims to the child and whether their actions were followed by circumstances is evidence of the action, itself, meaning that it had occurred.
Judges rely on lawyers’ ability to present evidence that shows that the abandoning family acted with the intent to leave the child. Common behaviors that are presented in the courtroom to show abandonment includes:

Types of Abandonment Under SC Law

In South Carolina, several forms of abandonment are recognized in various areas of law. In this section, we will only focus on three concepts – child abandonment, property abandonment and spousal abandonment.
For purposes of divorce law, a parent may be guilty of child abandonment if they willfully abandon a child for a period of six months or more and allow the child to live in the custody of others without manifesting interest in such child’s welfare or providing for maintenance, education or other care of the child. The court is to consider the situation of the parent at the time of abandonment, but if the court finds clear and convincing evidence of abandonment, then the prior situation of the parent is less relevant. As a practical matter, the mere act of moving out of the state or country and failing to arrange for contact or support, especially for over six months, may be enough to constitute child abandonment.
Proof of property abandonment involves clear and convincing evidence of (1) intent on the part of the property owner to abandon the property, (2) some action taken by the owner of the property to abandon it, and (3) some action on the part of the public to take possession of the property. The test for whether the owner intended to abandon the property is objective and considers not only the acts of the owner, but also the facts and circumstances surrounding the property. Mere non-use of property is insufficient to support a claim of abandonment, and the abandonment statute was not intended to allow a person to obtain fee simple title to real property owned by another through neglect.
For purposes of divorce law, spousal abandonment refers to an intentional abandonment by one spouse of the other, of the marital residence, which is without the other spouse’s consent and without reasonable cause; with the intent of the abandoning spouse to remain separate and apart from the other spouse; and without any reasonable expectation that the abandoning spouse will resume cohabitation. Abandonment generally occurs when one spouse leaves the martial residence without the other spouse’s consent and intends to remain away from the marital home indefinitely. The court further holds that the spouse who departs and abandons the other does not have the right to the exclusive possession of the marital residence. If the spouse who has abandoned the home fails to return (even if that spouse does have the right to occupancy), then they will be liable to the other spouse for their pro-rata share of the fair rental value of the home.

Legal Ramifications of Abandonment in SC

The potential legal consequences for abandonment in South Carolina, both civilly and criminally, can be harsh depending on the circumstances. If a person is found to have abandoned either children or an elderly person in South Carolina, they can not only face felony charges, but also lose a significant amount of money in civil penalties.
Abandonment of a Child
If a person is found guilty of abandoning their child or step-child, then they are guilty of a felony, within certain limits, and may be fined anywhere up to $5000 dollars, or imprisoned for no more than ten years, or potentially both – always at the judge’s discretion.
In South Carolina, a parent or step-parent abandoning a child means that they willfully forsake "all parental duties and all parental responsibilities." In that same statute, the law mentions it must be a "total and complete abandonment" of that child. But it is never so simple as that. There is a requirement that institutions, "physicians, other health care practitioners, hospitals, and other medical facilities to inform law enforcement of all known births upon failure to produce a parent for a birth to be recorded in violation of the law," which to some degree protects some parents from facing charges.
Abandonment of an Elderly Person or a Person with Disabilities
A person is guilty of abandonment of an elderly person or a person with a disability if they "willfully abandon the elder person or disabled person in such a manner as to cause a reasonable person to be concerned about the elder person’s or disabled person’s safety or health." This means no reasonable person should be able to "conclude that the elder person or disabled person will be safe or healthy if the elder person or disabled person is left in the location or any condition in which such elder person or disabled person is left." But the law further states that an elderly person will not be found to be abandoned if they have "made arrangements for the person’s continuing care." However, if the arrangements are insufficient or inadequate, the law provides the opportunity for prosecutors to go after the abandoning party.
Civil Penalties
Aside from the potential criminal penalties, the state of South Carolina also reserves the right to penalize parents or step-parents who abandon kids under the family court act by automatically making them liable for child support until the child turns 18 years old. There is basically an automatic default judgment for child support against the abandoning parent or step-parent. The law finds that proof of paternity or maternity is not required in order for the family court to order this judgment.
The law does provide one exception to this potential penalty. If the court finds by a preponderance of the evidence that the family court’s order to make the parent or step-parent liable for child support was in error, then the court can simply vary the order so as to eliminate the requirement of child support.
Penalizing Parents for Abandoning Children Is Very Common in South Carolina
Not only is this issue commonly seen in the family court after separation where one parent is either refusing to care for the minor children, or has been out of touch with the children for a substantial period of time, but also where one spouse flees a marriage, forfeiting the grounds for the divorce, like adultery, and ends up fighting the divorce in front of the family court. And the state can take away any opportunity for them to assert those grounds if it can be shown they abandoned the marriage.
The state sees abandonment as a serious liability that a parent or a spouse can pose to a minor child or to the elderly. South Carolina takes these two issues quite seriously and while criminal convictions are difficult, even when the "abandonment" issue is just contested in a family court litigation, the person accused of abandonment may still suffer a severe economic consequence as a result of the "abandonment" claim. Even if the person is completely innocent and has never abandoned anyone, without the proper legal representation, this person may be forced to suffer some substantial financial penalties or even criminal penalties. That is why competent, experienced law firms sometimes with one or more attorneys and one or more paralegals work closely with their clients to make sure that their rights are protected and enforced according to law.

Abandonment in South Carolina Family Law Cases

Abandonment is a common ground for obtaining a divorce in South Carolina. Abandonment is the voluntary act of a departing spouse where that spouse severs the marital relationship without just cause and without the consent of the other spouse. The departing spouse must not have been forced away by the other party nor can abandonment be condoned after the departure.
Generally, the abandonment portion of the statute relates to the period of one year prior to the commencement of an action for divorce. However, in some situations the abandonment requirement can be met with proof of desertion or constructive desertion. Desertion occurs when one spouse wilfully leaves or remains away from the other spouse. Constructive desertion means that the deserted spouse remains in the family home and is "forced to leave either for his or her safety, peace of mind, or health, or to avoid exposure to inhuman treatment, intolerable indignities, and cruelty." Constructive desertion may not be a wilful act of the departing spouse but may be by reason of the intolerable and unlawful acts of the other party.
An action for simple abandonment requires proof of the departure from the family home and that the departure is without consent and with intention not to return. While the action for desertion and constructive desertion also require these elements, the plaintiff spouse does not have to prove abandonment for the grounds for divorce to be satisfied. In each of the actions for desertion and constructive desertion, the family law court must find that the deserting spouse had an intent to desert, was at fault in leaving the other spouse and that desertion continued upon the day of trial.
Abandonment often arises in a public policy context. A spouse in serious violation of a statute or controlling regulation regarding spousal support or abandonment as a defense to divorce, in most instances, would not be heard in his or her defense to a divorce decree. Thus, if a spouse abandons a wife or husband and then a year later claims that the other spouse is entitled to spousal support, the court will not be able to award the abandoning spouse an award of spousal support.

How to Respond in SC if Accused of Abandonment

Abandonment isn’t just an emotion; it’s also a term with legal significance!. In the context of family law matters, this means a parent leaving their child without a reasonable expectation or plan to return, coupled with the intent on the part of the parent to sever their parental rights. This may include a parent moving out, and not intending to have contact again with their child. Whatever the situation, it’s important to understand your rights if you are accused of abandonment, and how you can defend against such a claim.
Authorities agree: "Abandonment is a legal term of art that describes a parent’s choice to abandon a child. A parent abandons a child when the child is without proper parental care or guardianship."
Sadly, similar to the way that some people wrongly accuse other people of theft, some parents wrongfully accuse others of abandoning their children. They may do this to gain greater control over the child as part of a custody battle. Or, they may do this because they believe that by portraying the child as having been abandoned by the other parent , they will receive greater financial support during a divorce. But the fact remains that filing a claim based on a false allegation of abandonment by another person is illegal. Under S.C. Code §63-7-1640, a court will terminate all legal rights and duties of a parent concerning their child in situations regarding the adoption of a child, relinquishment of custody of a child to the Department of Social Services, and appointment of a guardian for a legally disabled adult. A court will terminate the rights of the following in regards to children: According to S.C. Code §63-7-1650, the following acts will constitute legal abandonment of a child: If you have been accused of abandoning your child by your former spouse or Significant Other, you may want to consider hiring an experienced Family Law Attorney to help defend your rights. While it may seem uncomplicated at first glance, being accused of child abandonment has significant legal ramifications. If true, it could lead to any of the following: It is critical, therefore, that you understand what defendant rights you may have, and take appropriate action to have the accusation dismissed or nullified when not true.

Proving Abandonment in S.C. Court Actions

In order to prevail on a claim for abandonment in South Carolina, the party alleging abandonment—the party with the burden of proof—must provide evidence demonstrating that the alleged abandoning parent (1) has failed to help or support the child for a statutory period that is determined by state law and (2) has likewise demonstrated a conscious disregard for the rights and feelings of the child. S.C. Code Ann. § 63-9-310(A)(2)(a). This evidentiary showing may be accomplished in two, independent ways, either one of which is enough to warrant a finding of abandonment and automatic termination of parental rights. Id.
The first way to prove abandonment under the statute is by showing a failure to provide support—both (i) the "failure…for a period of six consecutive months" prior to the commencement of the action or proceeding seeking to terminate parental rights, and (ii) the "failure…for a period of six consecutive months" following service of process or our finding of notice (whichever comes first). Id. See also S.C. Code Ann. § 63-9-310(A)(2)(a)(i) & (ii).
The Court has explained that the failure to provide support must be total and complete; otherwise, it may be an insufficient basis for a finding of abandonment. See, e.g., S.C. Dep’t of Soc. Servs. v. Singleton, 299 S.C. 236, 242, 383 S.E.2d 8, 12 (1989).
The second way to prove abandonment under the statute requires a party to show that a parent (i) "has lived apart from the child without contributing to the child’s well-being for a period of six consecutive months…" S.C. Code Ann. § 63-9-310(A)(2)(a) & (b) (emphasis added). The relevant statutory provision makes clear that courts must separately conduct this independent analysis of the alleged abandoning parent’s conduct apart from any examination of his or her economic support for the child. See id.
Thus, evidence necessary to satisfy this second avenue of proof is not nearly as formalistic or object-specific as the evidence necessary to satisfy the first avenue of proof. See In re Mater of Petty, 353 S.C. 405, 411 n.5, 578 S.E.2d 610, 613 n.5 (2003) ("Proof of an attempt to visit a child may be sufficient to defeat an award of temporary custody or permanent custody… . However, failure to visit a child is not sufficient to prove abandonment for the purpose of terminating parental rights.") (internal citation omitted).
Indeed, while South Carolina Courts have noted that the issue of whether a parent has sufficiently lived apart from the child is a question of law, the statute does "not require [the Court] to draw all inferences from the facts in favor of [the party with the burden of proof]." See S.C. Dep’t of Soc. Servs., 299 S.C. at 242, 383 S.E.2d at 12 (citing cases for proposition that "the evidence must be sufficient to warrant a finding of abandonment by clear and convincing proof").
At least one Court has strongly suggested that, in addition to any direct evidence that an abandoning parent has lived apart from the child without contributing to the child’s well-being, courts may also consider circumstantial evidence to find abandonment. See S.C. Dep’t of Soc. Servs. v. Lorrick, 304 S.C. 16, 23, 402 S.E.2d 887, 892 (Ct. App. 1991); see also In re A.B., 372 S.C. at 121-22, 641 S.E.2d at 117 (stating that "the burden of proving abandonment switches to the father-respondent when the children are placed in an adoptive home pursuant to the Act…at that point, the father-respondent is required to establish that he did not abandon his children during [the relevant six month timeframe]").

SC Legal Resources

The South Carolina Bar Association website (www.sccourts.org) provides multiple resources for individuals seeking legal assistance. The organization lists the location of lawyers throughout South Carolina that are part of its Lawyer Referral Service. The listing provides names of lawyers that are members of the S.C. Bar Association who have agreed to provide a 30-minute consultation for up to $25. The site also provides a link to a pro bono program for individuals whose income is at or below 125% of the federal poverty guidelines who need legal assistance on non-criminal matters, such as abuse and neglect, consumer law, employment law, housing law and uninsured motorists. Any South Carolinian who meets the criteria can contact the South Carolina Bar Pro Bono Program at 803-576-3800 or 888-346-5592. Another option for potential clients is Legal Aid of South Carolina. Legal Aid of South Carolina refers clients to appropriate local legal services agencies , private attorneys and other community resources, forming a collaboration of programs created to provide the residents of South Carolina with equal access to justice. It also helps families that encounter difficulty from state agencies. It is possible to locate help through the website by filling out an online interview (www.sc.freelegaladvice.org). The South Carolina Department of Social Services is another resource available for people looking for information about abandonment cases. Its website (www.dss.sc.gov) provides links to various programs that the department administers, including Family Independence, Foster Care, Child Support Enforcement, Child Protective Services and Adult Protective Services. Mental health resources are available at the South Carolina Department of Mental Health. The agency’s website (www.scdmh.org) contains manuals that cover the topics, eligibility and how to apply, and frequently asked questions.