What is Meant by Abandonment in the State of Indiana?
There are several types of abandonment recognized in the State of Indiana, each with its own legal definition and implications. The most common types of abandonment recognized by law are:
Under Indiana law, property abandonment refers to the surrender or relinquishment of some object or substance, by the owner, manifesting an intention to forego the right to future possession of it. In determining whether there was an abandonment of property, all the facts and circumstances in an individual case should be taken into consideration.
Parental abandonment occurs when a parent leaves a child, or fails to exercise physical custody of the child, for a period of at least six months, or for any period of time after the submission of the initial petition to terminate parental rights. The criteria for establishing parental abandonment may vary , depending upon the purpose for which the abandonment is shown in court.
Spousal abandonment refers to the desertion of one spouse by another, without just cause, for one full year immediately preceding the filing for divorce. If either spouse willfully fails to cohabit with the other for one full year, the spouse who does not cohabit may obtain a decree of divorce.
As with other types of abandonment, spousal abandonment requires a showing that the abandonment was without justifiable cause and amounts to desertion. Other causes may include rejection by the other spouse, refusal to allow the other spouse to live in the home, humiliation of the other spouse, or actual or threatened physical violence.
Laws Surrounding the Abandonment of Parents
Parental abandonment is a serious issue that can have long-term implications for a child’s development and future. In addition, it can impact issues of child custody and even the termination of parental rights. Indiana addresses parental abandonment or neglect by providing a range of relevant laws in the state’s Code.
Indiana Code 31-34-1-1 provides the following:
(a) A child is a child in need of services if, before the child becomes eighteen (18) years of age or while the child is eighteen (18) years of age, one (1) or more of the following exist:
- (1) The child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of his parent, guardian, or custodian to supply the child with necessary subsistence, education, medical care, or surgical care.
- (2) The child’s physical or mental condition is seriously threatened under the circumstances.
- (3) The child is without a parent, guardian, or custodian.
(b) A child is a child in need of services if, before the child becomes eighteen (18) years of age or while the child is eighteen (18) years of age, the child is a child in need of services within the meaning of IC 31-36-2-4 and IC 31-36-2-5.
These subsections governing whether or not a child is in need of services, also apply to cases of abandonment. For example, if the parent or parents abandon the child, this can be used as the basis for a finding that the child is in need of services. As can circumstances in which the child has "serious impairment or serious endangerment" because the parent or parents deny them basic necessities.
Additionally, Indiana Code 31-35-2-4.5 addresses the issue of abandonment in its definition of whether a child is a CHINS. It provides the following:
Sec. 4.5. (a) A child is a CHINS if at least one (1) of the following conditions exist:
(1) The parent or guardian of the child:
(A) knowingly or intentionally fails to provide the child with necessary nourishment or safe shelter; or
(B) knowingly or intentionally fails to provide the child with medical care; and
(2) the child is either:
(A) seriously endangered by the lack of nourishment, safe shelter, or medical care; or
(B) the child is the victim of:
(i) neglect; or
(ii) abuse.
(b) For purposes of subsection (a)(1), the terms "knowingly" and "intentionally" have the same meaning as defined in IC 35-41-2-2.
As you can see, there are several nuanced requirements and considerations involved in the legal definition of abandonment. For example, in addition to the related issues of medical care, guardianship, and the provision of safe shelter.
Once a decision is rendered in a case of parental abandonment, the legal consequences for these decisions can be severe. They also may have an impact on a range of additional custody and parenting time issues.
It is important to remember that the addition of the term formerly known as "takeaway parenting time" to "substantial modification of parenting time" does not change this standard of review. The best interest of the child remains the standard of review utilized in considering any requests that fall under this general category.
Abandonment of Property
In Indiana, the law prescribes specific steps regarding the handling of abandoned property. Indiana Code 32-34 governs "Disposition of Unclaimed Property." Specifically, in the case of tenants who abandon property in an apartment, office, or other leased space, the landlord may dispose of the property after giving notice under IC 32-34-1.
The law provides:
"(A) landlord is not liable to a tenant who abandons property to the landlord if the:
(1) landlord posts notice of the landlord’s intention to dispose of the property in a conspicuous place in the common area of the building, structure, or complex in which the tenant last resided not later than five (5) days after the tenant abandons the property; or
(2) landlord sends notice of the landlord’s intention to dispose of the property to the tenant at the tenant’s last address on file with the landlord, by certified mail not later than five (5) days after the tenant abandons the property. . . ."
IC 32-34-1-3.
If the landlord does not comply with the statute, however, any "landlord is liable" for damages to the tenant and attorney fees. IC 32-34-1-4.
Abandonment of personal property has a different definition than abandonment of real property as described in the Indiana Residential Landlord and Tenant Act. Indiana Code 32-31-6-5 defines abandonment of residential rental property as "a tenant ceases to occupy the premises, is absent from the premises for a period of twenty-one (21) consecutive days or longer, and the landlord believes that the tenant has vacated the premises with no intention to return." IC 32-31-6-5 and 32-31-6-6. The Indiana Residential Landlord and Tenant Act further states that "The landlord shall promptly notify the tenant of the intention to terminate the rental agreement and lease and take possession of the rental property by sending written notice to the tenant’s last known address by certified mail." IC 32-31-6-7. So just as a landlord can dispose of personal property left behind by a tenant due to abandonment under Indiana Code 32-34, a landlord may also send a written notice notifying the tenant of his intent to terminate the lease and reclaim possession of the rental property for failure to occupy the premises, that is, basically abandonment of the property under the Indiana Residential Landlord and Tenant Act.
Abandonment of Spouses
Abandonment is a common scenario in family law and divorce matters. However, most people think of what is commonly referred to as "abandonment" meaning that one spouse just "walks away" or leaves with no notice and no concern for the other spouse or their well being. Indiana has taken the language used by a previous version of the statute that referred to abandonment of a spouse as "sulking, reproach, ill treatment, indignities of such a character as to render the condition of the innocent spouse intolerable and life burdensome." However, the sulking, reproach, and ill treatment referred to in this statute has fallen out of style so to speak, and now the courts simply refer to this as "spousal abandonment."
In a Family Law context, abandonment is the wrongful withdrawal of a spouse from all or some of the duties and obligations of marriage. It may also refer to the actions of a spouse who leaves the marital home or refuses to participate in the marriage or is withholding financial support from the other spouse. Indiana Code § 31-15-2-4 explains that abandonment is one of the factors that can be "considered by the court in determining the grounds upon which a marriage may be dissolved." However, in the context of dissolution (divorce) , abandonment is not as much a factor as it used to be under the statute. The Indiana dissolved the statute in 1977, and the new standard was that of "irretrievable breakdown of the marriage relationship," i.e., a no-fault divorce without regard to spousal or child abandonment.
In some situations, the abandonment may be used as a factor when asking a judge for an Order of Exclusive Occupancy in Cases Involving Domestic or Family Violence. A spouse or fiancé (based on the professional relationship with either spouse) may ask the court for an order allowing them to enjoy exclusive, undisturbed, and sole possession of the marital residence if the other spouse has abandoned that home. Abandonment can also be used as a factor by some judges when award custody to one party over the other where one spouse has no contact with the children and rarely if ever sees them or attempts to remain in contact with them.
Abandonment in and of itself, however, will not prevent a judge from considering a spouses entitlement to either alimony or a permanent property distribution. In fact, a judge will even order alimony or a division of assets to a spouse who left the marital home where there is credible evidence that they did in fact suffer domestic violence at the hands of their spouse.
Litigating and Protecting Abandonment Issues
For individuals or entities affected by abandonment, Indiana law provides some options for legal recourse. A person can seek legal action against the abandoning party if the abandonment caused loss of livestock or the sale of any agricultural product. If economic damages occurred due to the abandonment, the plaintiff can seek actual damages plus any lost profits in civil court. If it is proven that the abandoning party acted with malice, punitive damages are also available. In some cases, the plaintiff is entitled to attorney’s fees as well. If a landlord abandons a tenant, the tenant may terminate the lease agreement. The tenant may recover damages too, including incidental damages, recovery of any prepaid rent, actual damages for personal property damage or loss, and any emotional stress proved in the action. Abandonment of a child or spouse often leads to a divorce or custody matter as well. Even though a court may not strictly enforce a contract that was signed after a person failed to live up to such a contract, it can help bring about property division and other matters that led to a contract being executed after the relationship failed. Abandonment, breach of fiduciary duty, or other matters affecting a contract can lead to legal actions involving the dissolution of a marriage or property division issues that must be resolved by a court. In addition to the above considerations, it is important to note that Indiana has statutes of limitation on almost all matters pertaining to the abandonment of a child, spouse, or business. Typically, the statute of limitations will be two years if someone wants to collect damages, but the time between the date of abandonment and the date of filing a lawsuit varies. In some courts, a petition to intervene can be filed at any time.
Key Cases and Statutes
When it comes to the application of child abandonment laws and their penalties and consequences, important cases have had a big impact on the evolution of the legal understanding and enforcement of the law. In many instances, it’s not the laws themselves that have changed the most. Instead, the way that these laws are applied and interpreted has evolved considerably over the last couple of generations in order to crack down on offenders who might otherwise get away with their actions. One of the most common questions about child abandonment is whether the victim has to be a newborn in order for the crime to be charged. This is something that has been debated in courts for decades. When applying Indiana’s statute "abandonment" was historically defined as a forcible abandoning of an infant undesirably and willfully. Some argued that this definition should not apply to abandoned children older than an infant. However, in 2003, the Indiana Court of Appeals stated that the statute should not be limited to an infant . The court found that abandonment could also apply to those who were not infants. The law is relatively clear when it comes to what constitutes abandonment. To this end, even if a child isn’t a newborn, a parent could be guilty of the crime. The important role of the court of appeals cannot be understated. The ability to adopt an interpretation of the statute gave them the opportunity to expand the definition of abandonment. In doing so, they expanded the opportunities for enforcement, allowing previous offenders now exposed to legal penalties. It’s also worth taking a look at one of the least innocent child abandonment cases in Indiana’s history. In 2015, a mother left her infant alone on the steps of a church in New Albany, Indiana. After doing so, she cleaned herself up and went to work. The baby was found after several hours. She was arrested by a responding officer who found bruises on the child. The mother was charged with abandonment, but there were mitigating circumstances. Her boyfriend had allegedly abused her, leaving her bruised and struggling to afford baby supplies.