If my mom refuses to take in my brother, is that abandonment?

Question

My 15 year old brother is currently living with me in California.

I am planning on taking him to stay with my mother in the next several days (also in CA). She does not own a home; she stays with a friend. She has told me "he can't stay here," but I still plan on taking him.

My question is: if she refuses to take him in, is that abandonment? I don't see her recourse if I drop him off and drive away, but I'm curious what the laws are about this. She has not cared for him for over a year but still has legal guardianship.

Please do not respond with comments such as "you shouldn't take him." As many people know, family dynamics can be messy.

Answer 1

Abandonment is not the legal concept to be concerned with (though the situation might fall within the ambit of a law that uses the word "abandon"), instead the question should be about the legal obligations of a parent. California Family Code is what you want to look at. Though a look at the criminal act of "child abandonment" can be informative: section 271 and following indicate that there are some penalties for abandonment-like actions for children between 14 and 18, but the acts would have to be "willful" and "without lawful excuse" (which probably includes "inability to perform").

In the Family Code, section 7822 states when proceedings can be brought. For example, if

(2) The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.

Section 3900-3901 says that

the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances. The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.

There seems to be a formula for computing expectations of support: but the law won't require a person to pay money that they do not have. The law also will not compel a third party to take in an guest, nor will it compel the mother to become homeless (i.e. order the third party to take in the child or eject the mother). The courts could easily require the mother to take financial responsibility for the child.

Answer 2

IANAL, I am not your lawyer, the following is not legal advice.

Answer: Possibly. California Penal Code Section 270:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=270-273.75

Some things to note:

1) Failure to provide shelter to a minor in one's custody is a misdemeanor offense, though generally CPS will provide a warning before pursuing the criminal charge (no source, just what I've heard).

2) The fact that you have provided for your brother for a year in no way legally diminishes your mother's responsibility.

3) There are exceptions for "lawful excuses". Inability (including financial) is one, and seeing as she neither owns nor leases nor rents her place of abode, means that this may be a lawful excuse, as she does not control the property (i.e. her friend, who has no legal responsibility to provide for your brother, has the authority to forbid him to reside in the property).