What Constitutes Legal Child Abandonment for Custody in North Carolina?

By Beverly Bird

It may be hard to imagine a parent voluntarily walking away from his child, but it sometimes happens. North Carolina’s state code includes specific provisions defining this sort of event, but only in respect to lawsuits seeking to terminate a parent’s rights. The legislation contains no specific rules for abandonment’s impact on custody decisions. However, this doesn’t mean a judge won’t consider it and its relevance to the best interests of the child.

Abandonment Statutes

Section 1111 of Chapter 7B of the North Carolina General Statutes lists 10 factors that allow a judge to legally terminate a parent’s rights. The fourth, fifth and seventh all refer to abandonment. According to Section 1111(4), if your child’s other parent leaves after you have a custody order in effect, and if that order requires him to pay child support and he doesn’t do so for at least a year, this is grounds for termination of his rights. If you were never married and he has failed to establish his paternity or to help provide financially for you and your child, this is also grounds for termination under Sections 1111(5)(a) and (d). Section 1111(7) states that when a parent has “willfully abandoned” his child for six consecutive months, a judge can terminate his parental rights. A judge would consider how these issues affect the best interests of the child. They're not automatic or definitive; it's left to the judge's discretion. Termination decides custody. After a court terminates a parent’s rights, he has no entitlement to petition the court for custody or even visitation.

Effect on Custody

North Carolina bases custody decisions on the best interests of the child as well. The state's general statutes don't include specific criteria defining "best interests" with regard to custody. However, if a parent abandons his child for an extended period of time without offering financial support or attempting to contact her, this would certainly color a judge's opinion if that parent turned up again and attempted to gain custody, and a judge is allowed to consider it. It’s unlikely that a judge would remove a child from the parent who has always cared for her to place her with someone who abandoned her, unless the custodial parent is unfit for some reason.

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Implications of Termination

Termination of a parent’s rights most commonly occurs when a stepparent or other third party wants to adopt the child; the termination paves the way to make adoption possible. If the child is not adopted, the termination doesn’t affect his right to inherit from the parent who abandoned him. However, termination ends that parent’s obligation to pay child support. If you have financial concerns about raising your child on your own, speak with an attorney before proceeding with a petition for termination. It might be more appropriate to seek full custody, even if the state's code doesn't include specific references to abandonment and custody. A professional can guide your decision about which way to proceed.

Spousal Abandonment

North Carolina is a “pure” no-fault state, meaning that it does not recognize spousal abandonment as grounds for divorce; the state doesn't recognize any fault grounds at all. The state’s laws don’t require spouses to settle issues of custody before they can receive a divorce. However, the law doesn’t bar you from including a request for custody as part of your divorce complaint if you want to, so a court can decide the issue. You can usually file additional pleadings at the time of trial to bring the abandonment to the court's attention.

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References

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