An Overview of Kansas Abandonment Laws
Abandonment laws are the legal principles that govern the desertion or discontinuation of a relationship by one of the parties to that relationship. Abandonment often relates to parenting and child custody issues, but it can also arise in other contexts, such as marriage dissolution, property division and foreclosure issues. Understanding how Kansas law defines and applies its abandonment laws will help you get a sense of whether you might have a legally enforceable claim to recoup financial or property losses resulting from one party’s decision to abandon their responsibilities.
From a legal perspective, abandonment generally means the intentional and voluntary relinquishment of a right or interest held in common between two parties, without any intent to return or reclaim said right or interest. In areas like child custody and divorce, this may mean abandonment of a spouse or child. In the realm of real estate, it could be an owner abandoning his or her interest in the property. Kansas law may even allow a lender to assert a claim to voluntary abandonment against a borrower who defaults on their mortgage.
The departure of one party from a relationship places an implied duty upon the remaining party to be the one to seek the protection of the court in order to avoid a default judgment against them. For example , if you believe you have been abandoned during the course of your marriage, you need to file for divorce before the other party can try to get the court to rule against you by default, even if you have taken no action related to the case. Again, the burden generally falls on the non-abandoning party to act quickly in order to seek protection under the law.
Although there is no Kansas law that specifically defines abandonment, it may be possible to establish the existence of legal abandonment by demonstrating a party has voluntarily deserted a spouse or child with the intent to relinquish all rights to them, or by showing the abandonment of ownership or possession of real estate by someone who intends to never reclaim the right to the property. A court in Kansas may give effect to the doctrine of abandonment by ordering a forfeiture of property, especially if such a decision serves the policies behind the law, which are to prevent fraud and protect the innocent party in the event of a default.
Parental Rights and Child Abandonment in Kansas
Kansas law has a very specific definition of child abandonment and the legal impact it has on parental rights. By Kansas statute, a child may be found to have been abandoned "when the parents, parent, or other person or persons having legal custody or control of the child has made no provision for the child’s support and has failed to maintain regular visitation, contact and communication with the child for a period of six months." K.S.A. § 38-2269(a)(7).
Whether a child has been abandoned is based on a variety of considerations. The mere fact that a parent or parents have not exercised visitation, contact, or communication with their child for a period of six months does not by itself indicate abandonment. For example, a person in prison may lack the ability to have regular visitation, contact, or communication with a child. Outside of excessive distance from the child, another statutory exception to there being a failure of visitation, contact, and communication is when visitation, contact, or communication is prevented due to domestic abuse. K.S.A. § 38-2269(b)(1-2).
If a parent of a child is found to have abandoned the child and that parent is the petitioner seeking to terminate the parental rights of the other parent, the court shall grant the termination of parental rights and the release of the child to the petitioner. K.S.A. § 38-2268(a)(2)(B). However, if another person is the petitioner seeking for the parental rights of a parent to be terminated, the court must find that the presence of the parent in the home is not in the best interest of the child before the court may grant the termination of parental rights and release the child to the petitioner. K.S.A. § 38-2268(a)(2)(B). If the safety of the child is at issue, the existence of domestic abuse against the child or another family member, and the alleged abusive parent agrees to engage in counseling, the court shall order such counseling. The court may then award property custody and parental rights to the parent who is not abusive. K.S.A. § 38-2268(c).
In addition to the legal impact of a child being found to have been abandoned with regard to the termination of parental rights, this finding has drastic legal consequences for purposes of child support in that child support will be terminated. K.S.A. § 23-4,112(c). It is important to note the exception enumerated in the statute to this termination. The legal consequences of abandonment as set forth in statute do not apply if the termination of parental rights or the termination of any duty of support is in violation of the prohibition against the unequal treatment or discrimination based on sex set forth K.S.A. 23-2501. K.S.A. § 23-4,112(c)(1).
Abandonment of Property Under Kansas Law
Abandonment and Other Property Rights
The law in Kansas has established some rights for landlords when it comes to abandoned property. Let’s take a brief look at what the law says and how it can apply.
Generally, an owner of real property can establish a lien against personal property that is abandoned on that property. For example, if you have a house and the tenants leave behind furniture, they are considered to have abandoned it. If the property is worth $500 or less, the tenant may be required to pay for its storage, but if the property has a market value over $500, then the tenant must be given 15 days to pay for storage, and the unit must be stored for 60 days (not exceeding a total of $300).
Owners may sell the property after the 60-day period has passed if the tenants have failed to reclaim it, or they may keep it as long as the property was not originally leased to the tenant as a part of the rental agreement.
One of the biggest questions we hear from clients is: What does abandonment mean? The law defines abandonment as the voluntary relinquishment of possession and the intent to never again own or possess the subject property. So, if you ever get into a disagreement with tenants over whether the property is abandoned or not, these are the two pieces of criteria you should consider – if they voluntarily gave it up and if the don’t ever intend to get it back.
A clear example would be if you give your neighbor some tools to borrow. You have clearly relinquished possession and have no intention of ever getting that tool back. Under Kansas law, that is abandonment.
When it comes to real property, landlords must give the tenants 10 days’ notice to remove any possessions from the property before it can be considered abandoned and disposed of.
There are also rules in place to protect against wrongful removal of property onto adjoining lands. If the property in question is real property, it can be placed in a location sufficient enough to allow the owner to reclaim the property at a later date without help from the non-owner.
For example, a person’s car parked in front of your driveway blocking your ability to get out is not an issue that can be solved using these rules. That is considered real property because it is a car. However, if there is a pile of trash, that is simply garbage and can be placed in a location away from the property.
There are responsibilities as well as rights that come with being a landlord. It is important to fully understand what is expected from you as a part of your tenant-lined agreements.
Abandonment of a Fixed Place of Abode
Tenant abandonment is a common risk for landlords who own and lease out rental properties. When a tenant abandons a property in Kansas, it is typically a breach of the lease under Kansas law. Tenants have a responsibility to continue paying their rent and remaining in possession UNTIL it has been terminated at law or in writing.
A landlord has three options when tenant abandons a rental property in Kansas:
If you do not have a judgment in your favor, notice is required to terminate a oral or written lease. If only a portion of a rental unit is abandoned (e.g., an apartment or a portion of a commercial space), notice is only required to terminate the lease for the portion that is abandoned according to the Restatement (Second) of Property, Landlord and Tenant § 12.5, in this case the rental unit is terminated as described in the written lease with respect to portion that has been abandoned.
If you still need to get possession of the property you can file a dispossessory action under Kansas law. Kansas law and some of the common law may be read to allow a landlord to dispose of tenant’s personal property. Most leases may contain a provision permitting the landlord to remove possessions left behind. Be cautious of that approach and it is advisable to first give notice to the tenant and at a second time period allow the tenant a short time to pick up their personal property before you move it out. The market value of the tenant’s property may not be sufficient to justify storage and you may want to avoid being a storage company.
Abandonment of Animals (Pets)
Pet abandonments in Kansas have consequences. Groups across Kansas continue to hold events and push legislation to address the abandonment of pets.
The movement to hold individuals responsible for Pet abandonment in Kansas is so popular that organizations across the state banded together and in 2013, they drafted Kan. Stat. Ann. § 21-6412, which includes abandonment after incarceration or sentencing, abandonment and neglect of an animal, abandonment of an animal by a veterinarian, abandonment by a person required to care for a child that is a breastfeeding mother, and abandonment of a dependant adult.
Under Kan. Stat. Ann. § 21-6412 "(a)(1) Abandonment after incarceration or sentencing. – A person who has been convicted or sentenced to a sentence of imprisonment and is incarcerated or imprisoned as a result shall not abandon that person’s state issued identification or driver’s license or vehicle registration. The provisions of this subsection shall be applicable to each person convicted of or sentenced to imprisonment, irrespective of whether the person is currently incarcerated or imprisoned.
(2) Abandonment: (A) A person who intentionally abandons a living animal commits the offense of abandonment.
(B) (i) "Abandon" means to do any of the following: A. Intentionally place an animal in an environment such that the animal is, or is likely to be, exposed to injury or suffer physical harm; B. intentionally deprive an animal of necessary care; C. place an animal in surroundings where it can reasonably be expected to suffer physical pain; or D. place an animal in surroundings where it is reasonably certain that the animal will die.
(ii) The term "abandon" also includes the abandonment of an animal which creates a potential danger to feral animals, humans or the lost animal. This diversion of the penalty scheme applies to the abandoned animal or the consequences resulting from the abandoned status of the animal conditioned on the rendering of emergency assistance as the animal’s owner or keeper may allow.
- (3) Abandonment and neglect of animal . A person who intentionally abandons or neglects the care of an animal or allows an animal to suffer wilfully is guilty of a class B misdemeanor.
- (4) Abandonment by a person required to care for child that is breastfeeding child. A person who intentionally abandons or neglects the care of a child under 6 months of age that depends upon a breastfeeding parent to provide sustenance is guilty of a class B misdemeanor.
- (5) Abandonment of animal by veterinarian. A person who intentionally abandons an animal which that person is employed to have cared for in a manner constituting neglect or abuse is guilty of a class B misdemeanor.
(b) Subsections (a)(2) offenses are a class B misdemeanor and subsection (a)(3) and (a)(4) offenses are a class B misdemeanor. Conviction of a violation of this section does not prohibit the application of subsection (c):
(c) A person who has been previously convicted of a misdemeanor in this section within three (3) years of being charged with a violation of this section is guilty of a class A misdemeanor.
(d) A person convicted of a violation of a misdemeanor shall be required to pay restitution for the harm and suffering of the animal or class or classes of animals affected by the violation in addition to any other criminal penalty imposed for any criminal acts as required by law, such restitution to be paid to any governmental authority or other entity or entities that render veterinary or other care services to the specified animals.
(e) The Kansas secretary of health and environment or any other governmental authority or any other person legally authorized to enter and inspect facilities within the jurisdiction of the Kansas department of health and environment shall permit authorized persons to inspect and institute emergency care for each abandoned animal held by a licensed and permitted animal shelter or facility, in accordance with the provisions of K.S.A. 2010 Supp 47-1738, and amendments thereto.
(f) The state of Kansas shall be entitled to any reasonable costs, including filing fees and attorney’s fees, incurred to institute or defend the actions for civil or criminal penalties related to this section.
Where to Find Legal Advice and Assistance
Legal resources and avenues for help in Kansas include the recent Kansas Department for Children and Families (DCF) call center. In 2018, DCF created a central location for all DCF customer service inquiries as part of a restructuring and reinvention effort. The new call center can be reached at 1-888-369-4777 for any questions that pertain to the issues surrounding abandonment or custodial concerns.
Kansas may have limited pro bono options specifically aimed at addressing abandonment issues or custodial concerns. In the context of personal injury, the Kansas Bar Association, a voluntary state wide organization for Kansas attorneys, provides a free lawyer referral matching service where callers can be matched with a local attorney.
Lawyer Referral Service (LRS) is a non-profit public service of the Kansas Bar Association that helps connect legal services and potential clients in more than 40 practice areas. This referral service is available to the public and assists those who need an attorney. When you call, you will be provided with contact information for one or two lawyers who have chosen to participate and who practice in the appropriate jurisdiction and area of law.
The LRS provides screenings between the individual and the community based lawyers in the area of law needed. The screening is not legal advice but is based solely on the request of the individual inquiring about the services. The fees for the initial consultation vary from one attorney to another. When the individual meets with the lawyer that is provided through the referral service, they should discuss the fees to expect and that lawyer’s billing practices.
Conclusion: Understanding the Law
As explored throughout this article, the laws surrounding abandonment in Kansas are far from simple. Each type of abandonment, whether it be child abandonment, abandonment of personal property, or abandonment of real property, carries its own nuances and legal ramifications. From the definition of what constitutes a "substantial abandonment," to the legal protections extending from 120 hours of continuous unoccupancy, understanding the intricacies of these laws can be the key to avoiding unnecessary conflict and hardship. To navigate the complexities of Kansas abandonment laws successfully, it’s crucial to seek out qualified legal advice prior to entering into any agreements or making any decisions that could be categorized as "abandonment." For example , if you are considering allowing your lease to go past due for a certain period of time, you should consult with an attorney to find out whether you could be liable for further rent payments beyond the occupation of the previously rented space. Furthermore, a consultation can help you determine whether you’ll be liable to find a sublet, in addition to your old lease, if you have fallen behind on rent. If you own real property and are considering abandoning it, it’s an even more pressing matter because the ownership of the property can have a tremendous impact on your future. You should involve legal council in any discussion about the status of your property, cities can lose interest in abandoned property as easily as the property can lose value.