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A Note On Abandonment

A Note on Abandonment

My Family Court firm has had a surge of calls about divorcing parties regarding what constitutes abandonment.

Abandonment in the context of a R.I. divorce action means specifically an allegation that one parent voluntarily left the marital home where at least one minor child was residing without continuing to visit, call, engage with, or financially support the minor child or children.

In short, a parent who removes himself or herself from the life of a child or their own accord.

Like a great many other allegations made in a contested divorce, it is easy and sexy to claim and more difficult to pin down and prove.

To be clear, I refer here to a claim of abandonment that is not necessarily criminal and not a grounds for involvement of DCYF.  I speak only of abandonment in the context of a creating a persuasive argument that the other parent in a divorce action is unfit to have placement or custody of a child.

A wife filing a divorce may want to consider abandonment (or willful desertion, or refusal by her husband to provide necessities for subsistence) when filing her Complaint as, if she is able to prove the same, she will be in a more secure position to gain sole placement and custody of the child or children, and the sundry benefits that entails.

As with any other allegation, abandonment must be proven by testimony, context, and real evidence.

For example, if Husband was willfully dislocated from the marital home by the police, or Wife’s brother with a shotgun in hand, then I think we can all agree that is clearly not voluntary abandonment.

If Husband went out to “play poker with his friends” and returned home after a very long night out to find that the locks had been changed, and his clothing scattered in the hallway, that is clearly not voluntary abandonment.

Sometimes, abandonment scenarios are not so clear.

What if Husband and Wife did not own or rent the marital home?  What if Wife’s sister owned the home, and she never approved of Husband?  What if she threw him out?  Or, even more grey, she simply made Husband’s life unbearable until he couldn’t take it anymore and finally left?  Is that voluntary abandonment in the true sense of the word?  Was he essentially evicted?

What about the Husband who recognizes that the marriage has turned sour, and instead of staying in the marital home and exposing the children to constant argument and fighting moves out to diffuse conflict and calm things down but after leaving he is kept from the children?  Should that be considered abandonment?  Does the Husband’s intent matter?  Should it?  I think many judges will agree that Wife should not benefit by her own bad faith actions.

You can see how murky the fact patterns can become.

Speak with an experienced Family Court attorney about your options when filing and litigating your divorce so you know in advance the many pros and cons of your allegations – as well as what trapdoors you may inadvertently open with each claim you make.

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