The title on domestic relations contains a number of criminal provisions concerning the parent-child relationship. The most important of these, § 19-10-1,makes it a misdemeanor for either parent to abandon a child. Two elements are required to be proved to support a conviction for abandonment: (1) willful and voluntary abandonment of the child by its parent;and (2) leaving the child “in a dependent and destitute condition.”The statute defines “a dependent condition” as leaving the child without “sufficient food, clothing, or shelter.” The statute is applicable regardless of the status of the child as legitimate or born out of wedlock.
The evidence necessary to sustain an abandonment conviction differs depending on whether the abandoned child is alleged to be legitimate or born out of wedlock, since in the latter case the evidence must show not only abandonment but also that the accused is the biological father of the child.Thus, an accusation which fails to clearly allege whether the child is legitimate or born out of wedlock, so as to enable the defendant to make his defense to this specific allegation, is subject to a special demurrer.
The law does not require the parent accused of abandonment to be domiciled in Georgia in order for this state to have jurisdiction. If the parent leaves his children in another state and the children subsequently come into this state and are dependent and destitute here, the offense is complete once the parent recognizes them in some way, as his family, after they have come into this state. The offense of abandonment is therefore completed in this state at that time, and jurisdiction is proper in Georgia.
Venue of a prosecution for child abandonment is in the county where the minor children first become dependent upon others for support.
Because the blood sample of a defendant in a child abandonment case potentially would be tangible evidence of parentage, which is an element of the crime charged, a search warrant is an appropriate vehicle for obtaining a blood sample from a defendant. When the state requests pretrial paternity blood testing for a defendant charged with child abandonment, the state must initially pay the cost. A verdict incorporating a finding of parentage would authorize the court to tax the cost of the blood test against the defendant or under certain circumstances against the prosecutor/prosecutrix or complainant.The state can compel the defendant to submit to a second paternity blood test if there is no indication that the repetition of the test is unusually burdensome to the defendant or precipitated by any negligence on the part of the state.An expert in biology is permitted to give his opinion based on the blood test results about the defendant's paternity.
The failure to prove paternity beyond a reasonable doubt does not necessarily mean that the defendant is not the father of the abandoned child. When a jury entertains a reasonable doubt as to the parentage of the defendant without being convinced that the defendant is not the parent, the only authorized form of the verdict is a general acquittal. Where the evidence of paternity is inconclusive, a special verdict as to the issue of paternity is not authorized.
One child abandonment case, Padova v. State,has held that a contract entered into between the parents of a child cannot be a defense to a § 19-10-1 prosecution because the rights of the child cannot be bargained away by the parents.It has also been held that a child support provision of a divorce decree provides no bar to a subsequent prosecution for abandonment.
In Georgia, a noncustodial parent is bound by duty and by law to support his child irrespective of whether the child owns property or has money sufficient to support himself and irrespective of whether the custodial parent may have an estate that is ample to support the child, and irrespective of any agreement the custodial parent may make as to such support. If the noncustodial parent does not comply with that duty imposed upon him by law, then this is intentional and wilful, voluntary abandonment as provided in § 19-10-1. This Code section refers to both parents, and makes it obvious that it is no defense as to one of them that the other has met the duties of support which he has failed to assume.
Although normally child abandonment is a misdemeanor, if the parent leaves the state it becomes a felony, punishable by one to three years' imprisonment. Felony abandonment requires the actual physical presence of the parent in this state. Thus, if the evidence shows that the parent was never physically present and therefore has never left the state, a felony sentence is unauthorized.A third offense under the statute is also a felony with one to three years' imprisonment as punishment. The offense is defined as a continuing one with prior conviction or acquittal irrelevant so long as there has been an abandonment for thirty days prior to prosecution. Because this offense which is predicated on a failure to sufficiently provide for the needs of the child is a continuing one, the principle of res judicata cannot be used to prevent a court from implementing appropriate procedures to insure that the child is sufficiently cared for.
The exclusive remedy for modification of child support is in the trial court that heard the child abandonment case. The clear intent of the statutory scheme of § 19-10-1(j) is to allow the trial court to retain jurisdiction over the issue of child support throughout the child's minority. The statute gives the trial court an important coercive tool—the suspended sentence—to ensure that the parent provides support. Moreover, because the statute provides for the trial court to set and modify child support, it would not make sense to involve another forum in determining the amount of support for the child.
The General Assembly enacted the Safe Place for Newborns Act of 2002 in order to prevent injuries to and deaths of newborn children caused by mothers who abandon them.Under this Act, a mother who leaves her newborn child in the physical custody of an employee, agent, or staff member of a medical facility is not subject to prosecution for the crime of abandonment of a dependent child. This exemption from prosecution is available only if the newborn child is no more than one week old at the time of relinquishment and only if the mother shows proof of her identity, if available, to the person with whom the newborn is left and provides her name and address.
Another abandonment offense is defined by § 19-10-2 which makes it a misdemeanor to abandon a pregnant wife in a dependent condition. If the abandoning husband leaves the state it is a felony punishable by one to three years' imprisonment.
Section 19-8-24(a) makes it a felony for any person or organization that has not been established as a child-placing agency by the Department of Human Resources to advertise adoptions or to hold out inducements to parents to part with their children.Furthermore, § 19-8-24(b) makes it felony for any person to sell, offer to sell, or conspire with another to sell or offer to sell a child for money or anything of value, except as otherwise provided by the adoption law. The punishment for either of these offenses is imprisonment for up to 10 years and/or a fine of up to $10,000.
Section 19-7-5 makes the knowing and willful failure to report child abuse by those required to do so a misdemeanor.