Questions Arise: What is Constructive Abandonment in the Rachel Canning Case

iStock_000016363488SmallDevelopments in the Rachel Canning case continue to have New Jersey parents, and indeed, parents throughout the entire country, scratching their heads in bewilderment. The court has ordered both parties to provide trial briefs discussing “constructive emancipation” and “constructive abandonment.”

What do these terms mean? As we recently discussed, New Jersey courts haven’t generally used the term “constructive emancipation,” but courts in some other states, including New York, have. Looking at interpretations in those states, we can at least understand how Rachel Canning’s case hinges on whether or not she is emancipated (whether constructively or otherwise).

The court’s request for discussion of “constructive abandonment,” however, is more puzzling. Which party here might really be abandoning the other? Is the question whether the parents have abandoned the child? Or is it whether the child has abandoned the parental home?

If it is the latter, then “constructive abandonment” could be seen as just one aspect of the broader “constructive emancipation” issue. Under that doctrine, the child’s voluntary abandonment of the family home for the purpose of avoiding parental control would mean that the child has forfeited the right to demand support from the parents. Matter of Roe v Doe, 29 N.Y.2d 188 (1971).
If it is the former, however, then finding a theory that makes sense is a challenge. Child abandonment is a very serious allegation. In some cases it can be the basis for criminal charges, or for a court proceeding terminating parental rights.

In some states (Texas, for example) “constructive abandonment” is specifically defined by statute as one possible basis for such termination (Tex. Fam. Code Ann. §161.001). The idea is that even when parents don’t necessarily intend to abandon a child, under certain limited circumstances a court can find “constructive” abandonment on the basis that the child has been completely deprived of parental support.

Another way that courts in some states (New York, for example) have used the term “constructive abandonment” is in connection with the fault ground of abandonment in divorce. Even without any literal abandonment, one spouse can “constructively” abandon the other by failing to fulfill the basic obligations of marriage. (New Jersey recognizes a similar ground, but in this state it is called “desertion.”) Obviously the Canning case does not involve a divorce, but the reasoning might be somewhat analogous: Could parents constructively abandon a child by failing to fulfill basic obligations of parenting?

New Jersey parental termination statutes don’t use the term constructive abandonment, but there are some similar provisions that allow a court to terminate parental rights in well-defined circumstances when termination is clearly in a child’s “best interests” (N.J.S.A. §30:4C-15.1). These provisions, however, apply to termination of rights in guardianship proceedings, usually extreme cases initiated by New Jersey DCP&P for children who have been in protective custody for a considerable length of time.

Termination of parental rights requires a high level of proof that a child’s needs require termination. There does not seem to be anything like this happening in the Canning case. Furthermore, parental rights of custody and control go hand in hand with parental duties of support. They are reciprocal, and so terminating parental rights generally ends the parental duty to provide support as well.

How then, would any theory of constructive abandonment really apply in this case?
As soon as it becomes clearer, we will let you know. In the meantime, we’re scratching our heads with the rest of the country.