2020 Georgia Code
Title 19 - Domestic Relations
Chapter 10 - Abandonment of Child or Spouse
§ 19-10-1. Abandonment of Dependent Child; Criminal Penalties; Continuing Offense; Venue; Evidence; Expenses of Birth of Child Born Out of Wedlock; Support of Child Born Out of Wedlock

1. A child abandoned by its father or mother shall be considered to be in a dependent condition when the father or mother does not furnish sufficient food, clothing, or shelter for the needs of the child.
2. If any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Moreover, if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, and leaves this state or if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, after leaving this state, he or she shall be guilty of a felony punishable by imprisonment for not less than one nor more than three years. The felony shall be reducible to a misdemeanor. Any person, upon conviction of the third offense for violating this Code section, shall be guilty of a felony and shall be imprisoned for not less than one nor more than three years, which felony shall not be reducible to a misdemeanor. The husband and wife shall be competent witnesses in such cases to testify for or against the other.
3. The offense of abandonment is a continuing offense. Except as provided in subsection (i) of this Code section, former acquittal or conviction of the offense shall not be a bar to further prosecution therefor under this Code section, if it is made to appear that the child in question was in a dependent condition, as defined in this Code section, for a period of 30 days prior to the commencement of prosecution.
4. In prosecutions under this Code section when the child is born out of wedlock, the venue of the offense shall be in the county in which the child and the mother are domiciled at the time of the swearing out of the arrest warrant; but, if the child and the mother are domiciled in different counties, venue shall be in the county in which the child is domiciled.
5. Upon the trial of an accused father or mother under this Code section, it shall be no defense that the accused father or mother has never supported the child.
6. In the trial of any abandonment proceeding in which the question of parentage arises, regardless of any presumptions with respect to parentage, the accused father may request a paternity blood test and agree and arrange to pay for same; and in such cases the court before which the matter is brought, upon pretrial motion of the defendant, shall order that the alleged parent, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage and which are reasonably accessible to the alleged parent, the known natural parent, and the child. The results of those blood tests and comparisons, including the statistical likelihood of the alleged parent's parentage, if available, shall be admitted in evidence when offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person. Upon receipt of a motion and the entry of an order under this subsection, the court shall proceed as follows:
   1. Where the issue of parentage is to be decided by a jury, where the results of those blood tests and comparisons are not shown to be inconsistent with the results of any other blood tests and comparisons, and where the results of those blood tests and comparisons indicate that the alleged parent cannot be the natural parent of the child, the jury shall be instructed that if they believe that the witness presenting the results testified truthfully as to those results and if they believe that the tests and comparisons were conducted properly, then it will be their duty to decide that the alleged parent is not the natural parent;
   2. The court shall require the defendant requesting the blood tests and comparisons pursuant to this subsection to be initially responsible for any of the expenses thereof. Upon the entry of a verdict incorporating a finding of parentage or nonparentage, the court shall tax the expenses for blood tests and comparisons, in addition to any fees for expert witnesses whose testimonies supported the admissibility thereof, as costs.
7. In prosecutions under this Code section, when the child is born out of wedlock and the accused father is convicted, the father may be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child.
8. The accused father and the mother of a child born out of wedlock may enter into a written agreement providing for future support of the child by regular periodic payments to the mother until the child reaches the age of 18 years, marries, or becomes self-supporting; provided, however, that the agreement shall not be binding on either party until it has been approved by the court having jurisdiction to try the pending case.
9. If, during the trial of any person charged with the offense of abandonment as defined in this Code section, the person contends that he or she is not the father or mother of the child alleged to have been abandoned, in a jury trial the trial judge shall charge the jury that if its verdict is for the acquittal of the person and its reason for so finding is that the person is not the father or mother of the child alleged to have been abandoned, then its verdict shall so state. In a trial before the court without the intervention of the jury, if the court renders a verdict of acquittal based on the contention of the person that he or she is not the father or mother of the child alleged to have been abandoned, the trial judge shall so state this fact in his verdict of acquittal. Where the verdict of the jury or the court is for acquittal of a person on the grounds that the person is not the father or mother of the child alleged to have been abandoned, the person cannot thereafter again be tried for the offense of abandoning the child, and the verdict of acquittal shall be a bar to all civil and criminal proceedings attempting to compel the person to support the child.
10. 1. In a prosecution for and conviction of the offense of abandonment, the trial court may suspend the service of the sentence imposed in the case, upon such terms and conditions as it may prescribe for the support, by the defendant, of the child or children abandoned during the minority of the child or children. Service of the sentence, when so suspended, shall not begin unless and until ordered by the court having jurisdiction thereof, after a hearing as in cases of revocation or probated sentences, because of the failure or refusal of the defendant to comply with the terms and conditions upon which service of a sentence was suspended.
    2. Service of any sentence suspended in abandonment cases may be ordered by the court having jurisdiction thereof at any time before the child or children reach the age of 18 or become emancipated, after a hearing as provided in paragraph (1) of this subsection and a finding by the court that the defendant has failed or refused to comply with the terms and conditions upon which service of the sentence was suspended by the court having jurisdiction thereof.
    3. Notwithstanding any other provisions of law, in abandonment cases where the suspension of sentence has been revoked and the defendant is serving the sentence, the court may thereafter again suspend the service of sentence under the same terms and conditions as the original suspension. The sentence shall not be considered probated and the defendant shall not be on probation, but the defendant shall again be under a suspended sentence. However, the combined time of incarceration of the defendant during the periods of revocation of suspended sentences shall not exceed the maximum period of punishment for the offense.
    4. Notwithstanding any other provision of law to the contrary, the terms and conditions prescribed by the court as to support by the defendant shall be subject to review and modification by the court, upon notice and hearing to the defendant, as to the ability of the defendant to furnish support and as to the adequacy of the present support payments to the child's or children's needs. The review provided for in this paragraph as to the ability of the defendant to furnish support and as to the adequacy of the present support payments to the child's or children's needs shall not be had in less than two-year intervals and shall authorize the court to increase as well as to decrease the amount of child support to be paid as a term and condition of the suspended sentence. The review as to ability to support and adequacy of support shall not be equivalent to a hearing held in cases of revocation of probated sentences for purposes of service of the suspended sentence; nor shall a modification, if any, be deemed a change in sentence; nor shall a modification, if any, be deemed to change the suspended sentence to a probated sentence.

(Ga. L. 1866, p. 151, § 1; Code 1868, § 4307; Code 1873, § 4373; Ga. L. 1878-79, p. 66, § 1; Code 1882, § 4373; Penal Code 1895, § 114; Ga. L. 1907, p. 57, § 1; Penal Code 1910, § 116; Code 1933, § 74-9902; Ga. L. 1941, p. 481, § 2; Ga. L. 1946, p. 63, § 1; Ga. L. 1952, p. 173, § 1; Ga. L. 1956, p. 800, § 1; Ga. L. 1960, p. 952, § 1; Ga. L. 1965, p. 197, § 1; Ga. L. 1967, p. 453, § 1; Ga. L. 1973, p. 697, § 2; Ga. L. 1976, p. 1014, § 1; Ga. L. 1980, p. 1374, § 2; Ga. L. 1988, p. 1720, § 11; Ga. L. 1989, p. 381, § 1; Ga. L. 2006, p. 141, § 6/HB 847.)

- Punishment of repeat offenders generally, § 17-10-7.

Blood tests for determination of paternity generally, §§ 19-7-45,19-7-46.

Husband and wife as witnesses for and against each other in criminal proceedings, § 24-5-503.

- Pursuant to Code Section 28-9-5, in 1991, a semicolon was substituted for the period at the end of paragraph (f)(1).

- Ga. L. 1980, p. 1374, § 3, not codified by the General Assembly, provides that this section and the remedy provided herein are intended to be in addition to and cumulative of all other existing laws related to paternity, child support, or other subjects covered herein and that this section shall not be construed to limit the operation of or repeal any such existing law.

- For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 79 (2006). For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).

ANALYSIS

• General Consideration
• Elements of Abandonment
• Blood Tests
• Illegitimacy and Paternity
• Jurisdiction and Venue
• Travel Restrictions
• Sentence
• Prosecution of Offense
• Defenses
• Probation

Gender-based classification concerning payment of medical expenses is reasonable and does not violate equal protection. Perini v. State, 245 Ga. 160, 264 S.E.2d 172 (1980).

O.C.G.A. § 19-10-1 does not violate constitutional requirement that state's administration of the state's laws be impartial and evenhanded. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Criminal provisions of former Code 1933, § 74-902 did not deny due process or violate equal protection principles. Huskins v. State, 245 Ga. 541, 266 S.E.2d 163 (1980).

Statutes making abandonment a criminal offense are to be strictly construed because the statutes are in derogation of common law and also because the statutes are penal in nature. Logue v. State, 94 Ga. App. 777, 96 S.E.2d 209 (1956).

- Abandonment of child, legitimate or otherwise, was not a criminal offense at common law. The proceeding is statutory and criminal in nature, and accordingly subject to strict construction. Mangum v. State, 91 Ga. App. 520, 86 S.E.2d 365 (1955).

- Clear intent of the statutory scheme is to allow the court that heard the child abandonment case 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. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

One purpose of abandonment laws is to provide that children be provided for by their natural parents. Perini v. State, 245 Ga. 160, 264 S.E.2d 172 (1980).

- Abandonment of one's parental duties by failure to provide financial support for one's minor child is not such an offense as may be categorized malum in se or the product of a depraved mind, either under common law or statutes adopted in this state. Seaboard Coast Line R.R. v. West, 155 Ga. App. 391, 271 S.E.2d 36 (1980).

There can be only one offense for same act of abandonment regardless of number of children in one's family. Balkcom v. Defore, 219 Ga. 641, 135 S.E.2d 425 (1964).

Offense of abandonment is a continuing offense, and it is therefore not required of state to show a return to children and a subsequent abandonment following an original abandonment for which the person was first tried. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

- Fact that divorce decree has been entered, placing custody of minor children in mother will not bar prosecution for abandonment on the theory that the defendant cannot "abandon" children whose custody has been taken from the defendant by process of law. Dyer v. State, 87 Ga. App. 440, 74 S.E.2d 129 (1953).

- Even though the crime of abandonment involves two distinct elements - bastardy and forsaking of parental duties, the statute creating the offense (O.C.G.A. § 19-10-1) deals with only one subject - the crime of abandonment - and therefore does not violate the constitutional prohibition (Ga. Const. 1976, Art. III, Sec. VII, Para. IV [see now Ga. Const. 1983, Art. III, Sec. V, Para. III]) against one act referring to more than one subject. Bembry v. State, 250 Ga. 237, 297 S.E.2d 36 (1982).

Construed with O.C.G.A. § 19-6-15. - It would not be improper to use the guidelines for computation of a child support award in civil proceedings as a condition in a criminal abandonment action since the child support award is neither a part of the sentence nor a punishment. Vogel v. State, 196 Ga. App. 514, 396 S.E.2d 262 (1990).

Guidelines for computing the amount of child support found in O.C.G.A. § 19-6-15(b) and (c), known as the "Child Support Guidelines," are the expression of the legislative will regarding the calculation of child support and must be considered by any court setting the child support. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

- Amendment to former Code 1933, § 74-9902 (see now O.C.G.A. § 19-10-1) which made it a crime for a father to fail to support his illegitimate child is not unreasonable, arbitrary, or discriminatory against him because he did not have the right to custody since the duty of the father to support a legitimate child was not dependent on the right of custody. Pasley v. State, 215 Ga. 768, 113 S.E.2d 454 (1960).

Duty of support is not dependent on the right to custody. Chapman v. State, 181 Ga. App. 320, 352 S.E.2d 216 (1986).

- Abandonment which is penalized by law is voluntary abandonment, and it must appear that parent willingly withholds support from child; but support and custody are not necessary concomitants. A parent must support a child, whether or not the child lives with the parent. Waters v. State, 99 Ga. App. 727, 109 S.E.2d 847 (1959).

Parents cannot bargain away child's right to seek increases in child support payments without court approval. Padova v. State, 151 Ga. App. 167, 259 S.E.2d 169 (1979).

Word "child" denotes that class of children under age of majority. Rhodes v. State, 76 Ga. App. 667, 47 S.E.2d 293 (1948).

O.C.G.A. § 19-10-1(i) is an exception to the use of a general verdict form in criminal cases as provided by O.C.G.A. § 17-9-2; the statute authorizes but does not require the trier of fact to return a special verdict as to the issue of paternity. Whitman v. State, 212 Ga. App. 523, 442 S.E.2d 313 (1994).

- Legislature allowed for contempt, garnishment, and income withholding to enforce child support obligations and did not intend to create additional implied remedies under O.C.G.A. § 51-1-6 for violation of O.C.G.A. § 19-10-1, the child abandonment statute. Therefore, a wife was not entitled to recover damages from her ex-husband's parents for her husband's violation of § 19-10-1. Bridges v. Wooten, 305 Ga. App. 682, 700 S.E.2d 678 (2010).

- Criminal conviction requiring child support in a higher amount than that awarded in a prior divorce action is not a modification of that civil judgment. It is expressly authorized by statute. Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978).

Cited in Rimes v. State, 7 Ga. App. 556, 67 S.E. 223 (1910); Garrett v. State, 41 Ga. App. 545, 153 S.E. 628 (1930); Faulkner v. State, 43 Ga. App. 763, 160 S.E. 117 (1931); McComas v. Glendinning, 59 Ga. App. 234, 200 S.E. 304 (1938); Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562 (1939); Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947); Moore v. State, 78 Ga. App. 470, 51 S.E.2d 467 (1949); Johnson v. Strickland, 88 Ga. App. 281, 76 S.E.2d 533 (1953); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956); Williams v. State, 213 Ga. 221, 98 S.E.2d 373 (1957); Murphey v. Murphey, 215 Ga. 19, 108 S.E.2d 872 (1959); Medders v. State, 100 Ga. App. 216, 110 S.E.2d 709 (1959); Simmons v. State, 100 Ga. App. 780, 112 S.E.2d 306 (1959); Wheeler v. Little, 113 Ga. App. 106, 147 S.E.2d 352 (1966); Shepard v. Bozeman, 222 Ga. 585, 151 S.E.2d 147 (1966); Bunch v. State, 114 Ga. App. 623, 152 S.E.2d 695 (1966); Wilbanks v. State, 116 Ga. App. 698, 158 S.E.2d 274 (1967); Y. v. S., 224 Ga. 352, 162 S.E.2d 321 (1968); Culpepper v. State, 120 Ga. App. 62, 169 S.E.2d 681 (1969); Thornton v. State, 129 Ga. App. 574, 200 S.E.2d 298 (1973); Smith v. State, 132 Ga. App. 199, 207 S.E.2d 681 (1974); Mullins v. State, 133 Ga. App. 554, 211 S.E.2d 631 (1974); Thornton v. State, 234 Ga. 480, 216 S.E.2d 330 (1975); Thornton v. State, 136 Ga. App. 655, 222 S.E.2d 158 (1975); Geiger v. State, 140 Ga. App. 800, 232 S.E.2d 109 (1976); Greer v. Moss, 240 Ga. 121, 239 S.E.2d 685 (1977); Hutchins v. State, 147 Ga. App. 567, 249 S.E.2d 364 (1978); Williamson v. Alderman, 148 Ga. App. 297, 251 S.E.2d 153 (1978); Etchison v. State, 149 Ga. App. 866, 256 S.E.2d 148 (1979); Miller v. State, 150 Ga. App. 597, 258 S.E.2d 279 (1979); Fincher v. State, 153 Ga. App. 190, 264 S.E.2d 713 (1980); State v. Benton, 154 Ga. App. 141, 267 S.E.2d 775 (1980); Goddard v. State, 154 Ga. App. 472, 268 S.E.2d 765 (1980); Nash v. State, 155 Ga. App. 42, 270 S.E.2d 269 (1980); State v. Benton, 246 Ga. 750, 272 S.E.2d 718 (1980); State v. Causey, 246 Ga. 735, 273 S.E.2d 6 (1980); Helms v. Jones, 621 F.2d 211 (5th Cir. 1980); Jones v. State, 157 Ga. App. 163, 276 S.E.2d 674 (1981); White v. State, 160 Ga. App. 857, 288 S.E.2d 574 (1982); Worthington v. Worthington, 162 Ga. App. 813, 292 S.E.2d 861 (1982); In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985); Kindle v. State, 181 Ga. App. 52, 351 S.E.2d 461 (1986); Charvin v. State, 182 Ga. App. 870, 357 S.E.2d 284 (1987); In re Herring, 185 Ga. App. 541, 365 S.E.2d 139 (1988); Pinson v. State, 194 Ga. App. 506, 391 S.E.2d 28 (1990); Weaver v. Chester, 195 Ga. App. 471, 393 S.E.2d 715 (1990); Mallory v. State, 225 Ga. App. 418, 483 S.E.2d 907 (1997); Rollins v. Campbell (In re Rollins), 243 Bankr. 540 (N.D. Ga. 1997); Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019), cert. denied, No. S20C0017, 2020 Ga. LEXIS 323 (Ga. 2020).

Elements of Abandonment

1. In General

There are two elements of offense of abandonment of a child: (a) desertion and (b) dependency. Both elements must be present to complete the offense. Blackwell v. State, 48 Ga. App. 221, 172 S.E. 670 (1934); Archer v. State, 48 Ga. App. 854, 173 S.E. 921 (1934); Brock v. State, 51 Ga. App. 414, 180 S.E. 644 (1935), later appeal, 54 Ga. App. 403, 187 S.E. 906 (1936); Cannon v. State, 53 Ga. App. 264, 185 S.E. 364 (1936); Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948); Cox v. State, 85 Ga. App. 702, 70 S.E.2d 100 (1952); Funderburk v. State, 91 Ga. App. 373, 85 S.E.2d 640 (1955); Fairbanks v. State, 105 Ga. App. 27, 123 S.E.2d 319 (1961); Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976); Moody v. State, 145 Ga. App. 734, 245 S.E.2d 40 (1978).

Gist of action for abandonment includes both abandonment and condition of dependency as to child. Heard v. State, 79 Ga. App. 601, 54 S.E.2d 495 (1949).

To constitute abandonment two material facts must appear: (1) that parent willfully and voluntarily abandons or deserts child; and (2) that child was left by reason thereof in dependent condition. Glad v. State, 85 Ga. App. 312, 69 S.E.2d 699 (1952).

Offense of child abandonment has two essential elements: (1) willful and voluntary abandonment of child by father or mother; and (2) leaving of child in dependent condition. Moody v. State, 141 Ga. App. 294, 233 S.E.2d 264 (1977).

Test for child abandonment is two-fold: (1) alimony or child support was not paid; and (2) other elements of abandonment appear. Lewis v. State, 157 Ga. App. 567, 278 S.E.2d 149 (1981).

Separation and failure to supply are essential elements and there must be a conjunction thereof. Campbell v. State, 20 Ga. App. 190, 92 S.E. 951 (1917).

Intention is peculiarly part of offense of abandonment. Brock v. State, 51 Ga. App. 414, 180 S.E. 644 (1935), later appeal, 54 Ga. App. 403, 187 S.E. 906 (1936); Cox v. State, 85 Ga. App. 702, 70 S.E.2d 100 (1952).

- There was no crime, under terms of statute, unless abandonment was willful and voluntary. Cox v. State, 85 Ga. App. 702, 70 S.E.2d 100 (1952).

Desertion contemplated by section must be willful and voluntary - that is, without coercive cause. Dyer v. State, 87 Ga. App. 440, 74 S.E.2d 129 (1953).

Actual desertion is necessary. Gay v. State, 105 Ga. 599, 31 S.E. 569, 70 Am. St. R. 68 (1898).

When parent deserts child, leaving the child in dependent condition, offense is complete. Blackwell v. State, 48 Ga. App. 221, 172 S.E. 670 (1934).

Continued refusal to provide support after actual desertion was necessary to complete offense, but it alone was not an offense. Brock v. State, 51 Ga. App. 414, 180 S.E. 644 (1935), later appeal, 54 Ga. App. 403, 187 S.E. 906 (1936).

Offense is complete upon willful and voluntary abandonment of child, leaving the child in dependent condition. Dailey v. State, 103 Ga. App. 117, 118 S.E.2d 379 (1961).

Offense is complete when parent willfully and voluntarily separates from child and fails to supply necessities. Smith v. State, 42 Ga. App. 419, 156 S.E. 308 (1930); Dailey v. State, 103 Ga. App. 117, 118 S.E.2d 379 (1961).

Failure to comply with duty under statute as intentional, willful, voluntary abandonment. Williamson v. State, 138 Ga. App. 306, 226 S.E.2d 102 (1976).

Dependency must be considered only in relation to actual physical needs of child. Logue v. State, 94 Ga. App. 777, 96 S.E.2d 209 (1956).

Abandonment is something more than leaving children in dependent condition. It means forsaking and desertion of children; the refusal of father to live where they are domiciled, and to perform duties of parent to his offspring. Blackwell v. State, 48 Ga. App. 221, 172 S.E. 670 (1934); Brock v. State, 51 Ga. App. 414, 180 S.E. 644 (1935), later appeal, 54 Ga. App. 403, 187 S.E. 906 (1936).

- To constitute abandonment of child there must be an actual desertion, accompanied by an intention to entirely sever, so far as it is possible to do so, the parental relation, and throw off all obligations growing out of the relationship; when the effect of this separation is to leave the child in a dependent condition. Brock v. State, 51 Ga. App. 414, 180 S.E. 644 (1935), later appeal, 54 Ga. App. 403, 187 S.E. 906 (1936).

Abandonment begins and continues as long as there is a failure to perform parental duty, and consequent dependence. Cannon v. State, 53 Ga. App. 264, 185 S.E. 364 (1936); Dailey v. State, 103 Ga. App. 117, 118 S.E.2d 379 (1961).

Distinction between new act of desertion and continuation of original act of desertion. See Weltzbarker v. State, 89 Ga. App. 765, 81 S.E.2d 301 (1954).

2. Application

There can be no abandonment of unborn child.

- Under provisions of statute, father cannot abandon his child prior to child's birth, because there is nothing in language that refers to abandonment of unborn child. Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976).

- That father begins to abandon child some months before the child is born will not excuse him for persisting in abandonment and failing to furnish the child with necessaries of life after the child's birth. Fairbanks v. State, 105 Ga. App. 27, 123 S.E.2d 319 (1961).

- Father of illegitimate child who abandons mother and child immediately after child is conceived cannot be convicted of abandonment unless he shall fail to furnish sufficient food and clothing for needs of child after the child's birth. Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958).

Abandonment begun before birth of child is not complete unless continued after child is born. Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976).

- Father who willfully and voluntarily abandons child before child is born, and persists in abandonment afterwards, leaving child in a dependent condition, is guilty of a misdemeanor. Smith v. State, 42 Ga. App. 419, 156 S.E. 308 (1930) (decided prior to enactment of § 19-10-2 regarding abandonment of dependent pregnant wife).

- Although a father's inability to pay due to his financial condition did not excuse his nonpayment of child support for ten months, it substantially negated the willful and voluntary elements necessary to prove the crime of abandonment. Ramos v. Ramos, 173 Ga. App. 30, 325 S.E.2d 415 (1984).

Mere failure to provide adequate shelter, food, and clothing does not constitute abandonment, it being required also that in addition such failure must be willful and voluntary and a failure to give parental care. Weltzbarker v. State, 89 Ga. App. 765, 81 S.E.2d 301 (1954).

- Sufficient evidence existed to support a defendant's conviction for abandonment as the evidence established that the defendant did not provide child support for 10 months which the defendant was required by a court order to pay, and the child's mother struggled to provide for the minor daughter shared with the defendant. Carter v. State, 287 Ga. App. 463, 651 S.E.2d 544 (2007).

- When mother did leave children, but left the children in same economic condition in which the children had been all along, mere act of leaving does not constitute penal offense of abandonment. Logue v. State, 94 Ga. App. 777, 96 S.E.2d 209 (1956).

Voluntarily and willfully failing to support dependent children after lawfully leaving the children violated the law. Brown v. State, 122 Ga. 568, 50 S.E. 378 (1905); Hunt v. State, 93 Ga. App. 84, 91 S.E.2d 133 (1955).

- Even after divorce decree awarding child support, parent can be prosecuted for abandonment. Ozburn v. State, 79 Ga. App. 823, 54 S.E.2d 376 (1949).

Partial compliance or noncompliance with support judgment may subject parent to prosecution for abandonment. McCullough v. State, 141 Ga. App. 840, 234 S.E.2d 678 (1978).

Noncompliance with alimony decree, and showing of other elements of abandonment establishes offense. Dyer v. State, 87 Ga. App. 440, 74 S.E.2d 129 (1953).

- When wife, because of failure of husband, father of her unborn child, to properly support her and on account of his misconduct, was justified in leaving him, and after birth of child, the father willfully failed to furnish the child with necessities of life, and child became dependent upon persons other than the father, the offense of abandonment became complete. Fairbanks v. State, 105 Ga. App. 27, 123 S.E.2d 319 (1961).

- When father drives mother and minor child or children away from home, or where the children are forced to leave to be safe from his anticipated assaults of which the children are justifiably apprehensive, under the law this constitutes desertion. Failure to furnish sufficient food and clothing for needs of children constitutes dependency or leaving children in dependent condition. Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948).

- When, after his divorce, defendant's parental duty consisted of child support, proof that he substantially and persistently failed to comply with that support obligation was sufficient to authorize a finding of willful abandonment. Additionally, proof that the mother was forced to rely on public assistance for housing, and family assistance plus public aid to families with dependent children to support their minor daughters was sufficient to authorize the conclusion that the children were dependent for necessities. Wilson v. State, 244 Ga. App. 224, 534 S.E.2d 910 (2000).

Blood Tests

Paternity blood test.

- O.C.G.A. § 19-10-1 makes no specific provisions for the state's requesting or compelling the defendant to submit to a paternity blood test. However, under O.C.G.A. § 17-5-21(a)(5), a search warrant is an appropriate vehicle for obtaining a blood sample from a defendant. State v. Slavny, 195 Ga. App. 818, 395 S.E.2d 56 (1990).

- 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 authorizes the court to tax the cost of the blood test against the defendant or, under certain circumstances, against the prosecutor/prosecutrix or complainant. State v. Slavny, 195 Ga. App. 818, 395 S.E.2d 56 (1990).

- When the accused father does not mention a paternity blood test until after he has been convicted of abandonment, this comes too late. Crayton v. State, 166 Ga. App. 544, 305 S.E.2d 19 (1983).

- Trial court does not err in refusing the defendant's request for a paternity blood test following the close of the evidence in the case. Subsection (f) of O.C.G.A. § 19-10-1 requires that such request be made by pretrial motion. Tutt v. State, 168 Ga. App. 599, 310 S.E.2d 14 (1983).

Request for paternity blood test must be made by pretrial motion. A telephone call to the district attorney's office expressing a desire to have such a test is not the equivalent of a pretrial motion. Barnes v. State, 181 Ga. App. 581, 353 S.E.2d 76 (1987).

- When the defendant was charged by accusation with misdemeanor abandonment of his illegitimate child and, after his conviction and prior to the hearing on his motion for new trial, he, the natural mother, and the child submitted to a blood test, the results of which test indicated a 99.53 percent probability that he had fathered the child, this "newly discovered evidence" did not warrant the grant of a new trial. Bray v. State, 181 Ga. App. 678, 353 S.E.2d 531 (1987).

- Requiring indigent putative father to bear initial burden of paying for paternity blood test is violative of the due process and equal protection clauses of the fourteenth amendment. Pierce v. State, 251 Ga. 590, 308 S.E.2d 367 (1983).

- O.C.G.A. § 19-10-1(f)(2) is violative of the equal protection and due process clauses of the fourteenth amendment to the Constitution of the United States to the extent that persons determined to be indigent are initially responsible for the expense of paternity blood tests they request pursuant to the statute. Therefore, in a prosecution for child abandonment, when the defendant is an indigent, it is error to deny the defendant's motion for funds for a blood test. Burns v. State, 252 Ga. 140, 312 S.E.2d 317 (1984).

- When the defendant pled guilty to an abandonment charge in 1978 in part because he could not afford the cost of a paternity blood testing, his subsequent efforts to raise money for a 1983 blood test which proved him not the father, considered along with a subsequent Supreme Court decision holding that an accused father could not be held responsible for costs of such a test, constituted due diligence and entitled him to a new trial based on newly discovered evidence. Britten v. State, 173 Ga. App. 840, 328 S.E.2d 556 (1985).

- Evidence that the defendant did not provide support for the defendant's children, was $30,000 in arrears on court ordered child support, and that the mother was forced to rely on the family for assistance to support her sons, was sufficient to support the defendant's conviction of child abandonment. Greene v. State, 268 Ga. App. 125, 601 S.E.2d 490 (2004).

Statutory scheme relating to illegitimate children and remedies available to state require support from both parents and both are subject to criminal prosecution. Hudgins v. State, 243 Ga. 798, 256 S.E.2d 899 (1979).

Both parents are responsible for support of illegitimate child. Thorpe v. Collins, 245 Ga. 77, 263 S.E.2d 115 (1980).

- Agreement to support illegitimate child is valid although parol, and although parentage is not acknowledged. Warner v. Burke, 137 Ga. App. 185, 223 S.E.2d 234 (1976), overruled on other grounds, Worthington v. Worthington, 250 Ga. 730, 301 S.E.2d 44 (1983).

- It does not in and of itself violate public policy for putative father of child to agree to make support payments in settlement of pending prosecution for abandonment. Burdeshaw v. McClain, 150 Ga. App. 108, 257 S.E.2d 24 (1979).

- Father of illegitimate child can be prosecuted and convicted for willful and voluntary abandonment of his child, leaving the child in a dependent condition; the law does not require that father of such illegitimate child shall have lived with mother in any relationship after birth of child. Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958).

- Failure to prove paternity beyond a reasonable doubt does not necessarily mean that the defendant is not the father of the abandoned child. Whitman v. State, 212 Ga. App. 523, 442 S.E.2d 313 (1994).

- In prosecution of one charged with abandonment of illegitimate child, one issue was paternity. It was competent as to this issue for mother to exhibit child to jury. Hunt v. State, 101 Ga. App. 126, 112 S.E.2d 817 (1960).

- When the mother unequivocally states that the accused is the father of her child and that she and the accused have engaged in the requisite sexual intercourse, and there is no evidence that the accused denied such sexual activity or that he was not the father of the child, the trial court is warranted in finding paternal responsibility. Crayton v. State, 166 Ga. App. 544, 305 S.E.2d 19 (1983).

Adjudication of paternity by conviction of abandonment is conclusive in subsequent civil proceedings for child support. Cummings v. Carter, 155 Ga. App. 688, 272 S.E.2d 552 (1980).

Jurisdiction and Venue

Desertion and condition of dependency must occur in Georgia.

- When father deserted children in a state other than Georgia and mother thereafter brought children into Georgia, where father also resided, and children while here were in a dependent condition, such father could not be properly charged with and convicted of abandonment, for reason that act of father's desertion, and dependency of his child must occur in this state. Glad v. State, 85 Ga. App. 312, 69 S.E.2d 699 (1952).

- Trial court did not err in denying the defendant's plea in abatement challenging the jurisdiction of the court, where, although the defendant was divorced in North Carolina and continued to live there, his regular exercise of his visitation rights by driving to Georgia to pick up his children for weekend stays in North Carolina showed that he had received and recognized his minor children as his family after they had come into Georgia. Chapman v. State, 177 Ga. App. 580, 340 S.E.2d 237 (1986).

- When undisputed evidence in abandonment proceeding against father of minor children showed that parents separated in Florida and mother took children with her to Georgia to live, and that, since return of wife and children to Georgia, defendant's desertion remained continuous, that he never again resumed his parental duties and status in regard to the children, and that no divorce or alimony proceeding was ever maintained, jurisdiction of offense remains in Florida rather than in Georgia. Weltzbarker v. State, 89 Ga. App. 765, 81 S.E.2d 301 (1954).

- Venue of first prosecution for offense of abandonment of minor children is in county where state of dependency of children upon others began on account of parent's failure to support the children. Cannon v. State, 53 Ga. App. 264, 185 S.E. 364 (1936); Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948).

Venue of prosecution for offense of abandonment is county where minor child first becomes dependent upon persons other than parent for support. Fairbanks v. State, 105 Ga. App. 27, 123 S.E.2d 319 (1961); Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976); Browning v. State, 139 Ga. App. 91, 228 S.E.2d 24 (1976).

- In prosecution for abandonment, the offense of abandoning one's child and leaving the child in a dependent condition is consummated and, in a legal sense, committed in county where state of child's dependency upon others begins on account of withdrawal of parent's presence and aid in way of support. Cleveland v. State, 7 Ga. App. 622, 67 S.E. 696 (1910); Ware v. State, 7 Ga. App. 797, 68 S.E. 443 (1910); Boyd v. State, 18 Ga. App. 623, 89 S.E. 1091 (1916).

Regardless of where abandonment had its beginning, the offense of abandoning one's child and leaving the child in a dependent condition is consummated and, in a legal sense, committed in county where state of child's dependency upon others begins on account of withdrawal of parent's presence and aid in way of support. Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976).

Travel Restrictions

Limitation on right to free travel.

- Persons, including indigents and other migrants, have a right to free travel. On the other hand, persons charged with commission of crimes shall be delivered up to state having jurisdiction of the crime. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

- Person charged in Georgia with commission of crime who has left Georgia and entered another state cannot be said to have a constitutionally protected right of free travel in interstate commerce that can be asserted to bar prosecution for Georgia offense. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

- There is an entirely obvious difference between an attempt by a "receiving state" to preclude or discourage inward migration from "sending states" of persons deemed by "receiving state" to be "undesirables," "noncontributors" or "economically burdensome persons," and efforts by "sending state" to bring persons accused of crimes back from "receiving states" to face criminal trial and punishment in "sending state." Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

- Commission of misdemeanor of child abandonment would not justify permanent restriction on offender's freedom to leave the jurisdiction. But a restriction that is rationally related to offense itself - either to procedure for ascertaining guilt or innocence, or to imposition of proper punishment or remedy - must be within state's power. Thus, although a simple penalty for leaving a state is plainly impermissible, if departure aggravates the consequences of conduct that is otherwise punishable, the state may treat the entire sequence of events, from initial offense to departure from state, as more serious than its separate components. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

- United States Const., amend. 14 does not preclude state from enhancing from misdemeanor to felony the punishment for a crime because the parent charged with child abandonment leaves the state because the General Assembly could have concluded that the parental support obligation is more difficult to enforce if the parent charged with child abandonment leaves the state. Garren v. State, 245 Ga. 323, 264 S.E.2d 876 (1980).

Former Penal Code 1895, § 114 was punitive, it was not a remedial remedy. Brown v. State, 122 Ga. 568, 50 S.E. 378 (1905).

- Increase in the amount of child support did not violate the ex post facto clause as applied to a defendant originally convicted of abandonment of his children and whose sentence was suspended upon condition that he pay a certain amount per month for child support, since the child support obligation was a pre-existing duty under state law and was neither a part of the sentence nor a punishment. Hudson v. Deyton, 770 F.2d 1558 (11th Cir. 1985), rehearing denied, 777 F.2d 704 (11th Cir. 1985).

- When the defendant was convicted of abandonment of his illegitimate child and his 12-month sentence was suspended on condition that he pay $240 monthly child support, it was held that such a suspended sentence was authorized pursuant to O.C.G.A. § 42-8-34(d)(1) [now (j)(1) of this section]. Bray v. State, 181 Ga. App. 678, 353 S.E.2d 531 (1987).

- Trial court erred by requiring the defendant to serve a suspended sentence for abandonment of his minor child because the time during which the court could require the sentence to be served had expired when the defendant's child reached the age of majority. Moody v. State, 190 Ga. App. 91, 378 S.E.2d 375 (1989) (decided under former § 42-8-34(d)(2)).

- Trial court erred in sentencing the defendant as a felon since it was stipulated that the defendant was never physically in the State of Georgia. Wilson v. State, 244 Ga. App. 224, 534 S.E.2d 910 (2000).

State may enhance misdemeanor of child abandonment to felony if resident offender leaves state after committing the offense. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

- Mere fact that it was "impossible" for the crime of abandonment to have been committed on the date alleged in the accusation did not authorize the grant of a motion for a directed verdict of acquittal. Minnix v. State, 162 Ga. App. 29, 290 S.E.2d 131 (1982).

- Bastardy (under former Code 1933, § 74-9901) and abandonment were separate offenses, and O.C.G.A. § 42-8-34, relating to modification of terms and conditions upon which sentences are suspended in cases of abandonment, does not apply in bastardy cases; and, thus, when the defendant had pled guilty to the misdemeanor charge of bastardy in 1972, the trial court lacked authority to modify the terms of the defendant's suspended sentence in 1981. Tillman v. State, 249 Ga. 792, 294 S.E.2d 516 (1982).

First instance of abandonment may be prosecuted immediately. Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948).

- Dependent condition for a period of 30 days prior to commencement of prosecution is not required unless there has been former acquittal or conviction. Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948); Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978).

- Accusation for abandonment failing to allege abandonment of "minor" child suffices. Heard v. State, 79 Ga. App. 601, 54 S.E.2d 495 (1949).

- Indictment for abandonment of minor child which fails to allege whether child is legitimate or illegitimate is subject to special demurrer pointing out such defect. Nesbit v. State, 111 Ga. App. 274, 141 S.E.2d 603 (1965).

Indictment must state that parent willfully abandoned child. McDaniel v. Campbell, 78 Ga. 188 (1886).

Sex of child need not be alleged. Woodward v. State, 18 Ga. App. 59, 88 S.E. 825 (1916).

- When indictment charges abandonment of "illegitimate" minor child, since crime of abandonment does not depend on whether child is legitimate or illegitimate, characterization of child as illegitimate is regarded as mere surplusage which state has no obligation to prove. Joseph v. State, 149 Ga. App. 296, 254 S.E.2d 383 (1979).

Allegation that the child was abandoned in destitute condition is surplusage, and no longer need be proved, it being sufficient to allege and prove that parent abandoned child and left the child dependent. McCullough v. State, 141 Ga. App. 840, 234 S.E.2d 678 (1977).

Wife is competent witness to prove marriage. Cunningham v. State, 13 Ga. App. 80, 78 S.E. 780 (1913).

No demand for support is necessary. Floyd v. State, 17 Ga. App. 265, 86 S.E. 460 (1915).

- Criminal conviction requiring child support in higher amount than that awarded in prior divorce action was not a modification of that civil judgment. It was expressly authorized by former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34). Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978).

State proved the abandonment of a minor child when the testimony of the state's witness is that the defendant never provided support for the child and the defendant admits this. Crawford v. State, 166 Ga. App. 643, 305 S.E.2d 403 (1983).

- There is nothing inconsistent with a verdict finding that the defendant is the father of an illegitimate child, but has not willfully abandoned the child. Bray v. State, 166 Ga. App. 187, 303 S.E.2d 752 (1983).

Contract to make support payments did not abrogate state's right to bring charges against the father for failure to meet his statutory obligations to provide support, the child's right to that support, or the mother's right to seek the relief provided by law in the event the father failed in his agreement. Pooler v. Taylor, 173 Ga. App. 859, 328 S.E.2d 749 (1985).

- Evidence for state authorized finding that the defendant was father of child, and that he had abandoned child several years before present trial, and the jury having resolved this issue against the defendant, the appellate court was powerless to interfere. O'Kelley v. State, 63 Ga. App. 609, 11 S.E.2d 718 (1940).

Defenses

Because offense is continuing, defendant cannot plead statute of limitations.

- Fact that dependency began more than two years prior to accusation is no ground for interposition of statute of limitations. Phelps v. State, 10 Ga. App. 41, 72 S.E. 524 (1911); Campbell v. State, 20 Ga. App. 190, 92 S.E. 951 (1917).

Abandonment is a continuing offense, at least until the defendant has once been convicted, and the statute of limitations will not relieve the father who abandoned the child and failed to supply the child's needs more than two years prior to the date of accusation, but who before that date temporarily returned to the child and for the time performed his parental duties, but who subsequently and before finding of accusation again left the child and thereafter failed to supply the child's necessities. Lomax v. State, 44 Ga. App. 500, 162 S.E. 395 (1931).

Provision declaring offense to be a continuing one carries with it the significance that it continues after a prior adjudication in accordance with provisions of former Code 1933, § 74-9902 (see now O.C.G.A. § 19-10-1) relating thereto, so that now when essential elements of crime are present, the defendant not only cannot plead the statute of limitations but when previously tried and thereafter essential elements of offense maintain for a period of more than 30 days, the defendant also cannot plead former jeopardy. Nelson v. State, 77 Ga. App. 255, 48 S.E.2d 570 (1948).

- Offense of abandonment which is predicated on a failure to sufficiently provide for the needs of the child is a continuing offense; consequently, the principle of res judicata cannot be used to prevent a court from implementing appropriate procedures to ensure that the child is sufficiently cared for. Vogel v. State, 196 Ga. App. 514, 396 S.E.2d 262 (1990).

§ 19-10-2 does not preclude subsequent prosecution. - Prosecution for abandonment of wife while pregnant under former Code 1933, § 74-9903 (see now O.C.G.A. § 19-10-2) did not bar further prosecution for abandonment of the child under former Code 1933, § 74-9902 (see now O.C.G.A. § 19-10-1) after the child was born. Waites v. State, 138 Ga. App. 513, 226 S.E.2d 621 (1976).

Only legal defense to abandonment is to prove that separation from child never occurred, or that the parent did not fail in supplying the child with necessities of life, such as food, shelter, clothing, etc. Smith v. State, 42 Ga. App. 419, 156 S.E. 308 (1930); Dailey v. State, 103 Ga. App. 117, 118 S.E.2d 379 (1961).

- Contention that personal financial difficulties prevented fulfillment of support duties is, at best, a partial defense. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980); Lewis v. State, 157 Ga. App. 567, 278 S.E.2d 149 (1981).

- Requirement that abandonment be willful and voluntary may be negated by introducing the defendant's evidence regarding the defendant's financial condition which demonstrates an inability to make child support payments. Elam v. State, 138 Ga. App. 432, 226 S.E.2d 290 (1976).

Conduct of other parent is no excuse for abandonment. Moore v. State, 1 Ga. App. 502, 57 S.E. 1016 (1907); Daniels v. State, 8 Ga. App. 469, 69 S.E. 588 (1910); Parrish v. State, 10 Ga. App. 836, 74 S.E. 445 (1912).

Conduct of child's mother, or her refusal to live with the child's father as her husband, is no defense to the father's prosecution for abandonment of the child. Cannon v. State, 53 Ga. App. 264, 185 S.E. 364 (1936); Hunt v. State, 93 Ga. App. 84, 91 S.E.2d 133 (1955).

It is no defense to prosecution for abandonment of child that mother has deserted father, or even if she is guilty of grossest immorality or unwifely conduct. The child is not responsible for, or to be abandoned because of, misconduct of wife and mother. Fairbanks v. State, 105 Ga. App. 27, 123 S.E.2d 319 (1961).

- Fact that mother supplied food, shelter, and clothing was no legal defense to accusation against father. Chandler v. State, 38 Ga. App. 362, 144 S.E. 51 (1928); Cannon v. State, 53 Ga. App. 264, 185 S.E. 364 (1936).

Statute referred to both parents, and made it obvious that it was no defense as to one of them that the other had met duties of support which he has failed to assume. Padova v. State, 151 Ga. App. 167, 259 S.E.2d 169 (1979); Carnegie v. State, 246 Ga. 187, 269 S.E.2d 457 (1980).

- Fact that children were being cared for by paternal grandparents, or other relatives, or the charity of strangers, does not prevent criminal prosecution of parent for willfully and voluntarily abandoning his minor children and leaving the children in dependent condition by failing to furnish such children with sufficient food and clothing for their needs. Rhodes v. State, 76 Ga. App. 667, 47 S.E.2d 293 (1948).

Act failing to alleviate dependent condition cannot be used as defense to charge of abandonment. Dailey v. State, 103 Ga. App. 117, 118 S.E.2d 379 (1961).

- When accused does not comply with judgment for alimony, he cannot set up such judgment in defense to prosecution. King v. State, 12 Ga. App. 482, 77 S.E. 651 (1913).

After judgment for divorce and award of alimony for support of minor children, father can be prosecuted for abandonment when he does not comply with judgment and when the record reveals that he only partially complied with decree of court. Ozburn v. State, 79 Ga. App. 823, 54 S.E.2d 376 (1949).

Judgment for alimony against accused and in favor of his wife and children would constitute no defense when it appeared that after rendition of such judgment he abandoned his children, leaving the children in a dependent condition, and failed to comply with the judgment. Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978).

- When father did not insist on legal right to custody, if he had such right, but allowed boy to live with mother and then, when action for abandonment of child was brought, attempted to defend on ground that he was willing and able to provide for minor in his own home, he having subsequently remarried, as well as on grounds that he was partially supporting the boy by providing him with a place to eat away from the mother's table (with a restaurant charge account) and on further ground that he was unable to contribute more, the first issue constituted no defense to the action, and the other two were questions solely addressed to discretion of the jury. Waters v. State, 99 Ga. App. 727, 109 S.E.2d 847 (1959).

Minority of defendant at time of marriage to child's mother is no defense. Smith v. State, 42 Ga. App. 419, 156 S.E. 308 (1930).

- Threat of future prosecution does not constitute such duress as will void promise to pay support for benefit of minor child. Burdeshaw v. McClain, 150 Ga. App. 108, 257 S.E.2d 24 (1979).

- Separation agreement incorporated in a divorce decree providing that the father was relieved of any child support except for health insurance did not bar the father's conviction for abandonment for failure to provide sufficient food, clothing, or shelter to meet the needs of the children. Chapman v. State, 181 Ga. App. 320, 352 S.E.2d 216 (1986).

- Child support and visitation provisions of a North Carolina divorce decree, while providing no defense to a charge of abandonment, were clearly relevant evidence on the issue of intent, and their exclusion was reversible error. Chapman v. State, 177 Ga. App. 580, 340 S.E.2d 237 (1986).

While a divorce decree specifically relieving defendant of his child support obligation due to his illness would not operate as a full defense, it was evidence that his failure to support was not done "willfully and voluntarily." Crews v. State, 178 Ga. App. 397, 343 S.E.2d 428 (1986).

Probation

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former § 42-8-34(d), which was identical to subsection (j) of this Code section, are included in the annotations under this heading.

- In the ordinary case when probation and/or confinement are involved, they begin immediately and cannot continue beyond the maximum period of sentence. In abandonment and bastardy cases, on the other hand, the service of the sentence may be postponed (suspended), but remain viable in the first instance until the child is 18, and the second until he is 14 years of age. The suspension feature may be eliminated, after notice and hearing, for failure to abide by the terms relating to weekly support payments, etc. But once the suspension feature is eliminated, and sentence modified to embrace confinement and/or probation as the case may be, the defendant does in fact enter upon the service of the sentence, and its probated feature, if any, cannot exceed the length of time applicable if incarceration instead of probation had been mandated. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

When, after the original suspended sentence in a bastardy proceeding was entered in 1968, the court held a hearing in 1974, and ordered child support payments to include medical bills, and certain arrearage caught up as conditions of probation, and a second post-sentence hearing was held in 1978, at a time when the defendant was not in arrears under either of the prior orders, the stated purpose of the hearing being for reconsideration of the terms of the defendant's suspended sentence, after which the defendant's weekly payments were increased from $12.50 to $25.00, the effect was to increase the terms of the sentence originally passed and as such it was illegal. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

In both bastardy and abandonment cases, the service of the suspended sentence does not commence until the suspension feature is revoked, whereas in all other cases where the defendant is placed on probation, the period of maximum sentence is to be counted from the date the sentence begins. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

Court may, at the time of sentencing, specify the amount to be paid by the parent for the support of the minor child and may suspend the service of the sentence pending the minority of the child. When the child reaches majority, the sentence is at an end. However, service of any sentence so suspended in abandonment cases may be ordered at any time before the child reaches the age of 21. However, when a sentence is merely probated, the probationary feature of the sentence ends when the elapsed time equals the maximum sentence of confinement which could have been imposed. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).

In abandonment cases, a suspended sentence does not begin (for purposes of exhaustion) until the suspension feature is revoked, whereas when the defendant is placed on probation, the period of the exhaustion of the sentence commences to run and is counted from the date the sentence is imposed. Jones v. State, 166 Ga. App. 277, 304 S.E.2d 451 (1983).

- If a sentence could be simultaneously probated and suspended, an underlying purpose of the conditional suspension (i.e., assuring child support from appellant during the child's minority) would be defeated. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980).

- When the sentence was suspended but the court later ordered that the delinquent father would be continued on probation, revoked the earlier sentence, and required the father to serve confinement as well as increasing the support payments, and thereafter, in subsequent orders, the court spoke of and treated the revoked sentences as being of the nature of probation, the record clearly indicates that the trial court considered the father on probation; and his claimed position that his probated sentence had expired after the authorized length of sentence following the order of probation has merit under these facts. Jones v. State, 166 Ga. App. 277, 304 S.E.2d 451 (1983).

Comparison of section with §§ 19-6-18 and 19-6-19. - O.C.G.A. § 42-8-34(d)(4) [now (j)(4) of this Code section] is analogous to the provisions on the civil side of the court, O.C.G.A. §§ 19-6-18 and19-6-19, and is necessary and proper in order to enforce the statutory child-support obligation in a manner which would allow for upward as well as downward modifications when conditions warrant. Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).

- Bastardy (under former Code 1933, § 74-9901) and abandonment were separate offenses, and the provisions of O.C.G.A. § 19-10-1 which relate to modification of terms and conditions upon which sentences are suspended in cases of abandonment do not apply in bastardy cases; and, thus, when the defendant pled guilty to a misdemeanor charge of bastardy in 1972, the trial court lacked authority to modify the terms of his suspended sentence in 1981. Tillman v. State, 249 Ga. 792, 294 S.E.2d 516 (1982).

- Judicial review and modification of a support order based on the defendant's ability to furnish support and the adequacy of the present support payment as it pertains to the child's need cannot be made at less than two-year intervals. Deberry v. State, 171 Ga. App. 484, 320 S.E.2d 264 (1984).

Legislature clearly intended that word "child," as used in statute, include illegitimate children. 1969 Op. Att'y Gen. No. 69-323.

Father is criminally liable, throughout minority of illegitimate child, for failure to support that child. 1969 Op. Att'y Gen. No. 69-323.

Bastardy prosecution is not bar to subsequent child abandonment prosecution. 1969 Op. Att'y Gen. No. 69-323.

- When mother resides in one county, goes to another for purpose of delivering the child, and returns to the original county, thereafter not receiving any support from the father of the child for the child's necessities, the venue for criminal prosecution of abandonment would be in the county to which the mother returned after the birth of her child. 1962 Op. Att'y Gen. p. 138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Desertion and Nonsupport, §§ 1, 29 et seq., 41, 50, 61 et seq.

- 67A C.J.S., Parent and Child, § 359 et seq.

- Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.

Abandonment of adopted child, 44 A.L.R. 820.

Power to make abandonment, desertion, or nonsupport of wife or family criminal offense, 48 A.L.R. 1193.

One charged with desertion or failure to support wife or child as fugitive from justice, subject to extradition, 54 A.L.R. 281.

Criminal responsibility of parent under desertion or nonsupport statutes, as affected by child's possession of independent means, or by fact other persons supply his needs or are able to do so, 131 A.L.R. 482.

Failure to provide medical attention for child as criminal neglect, 12 A.L.R.2d 1047.

Father's criminal liability for desertion of or failure to support child where divorce decree awards custody to another, 73 A.L.R.2d 960.

Application, to illegitimate children, of criminal statutes relating to abandonment, and nonsupport of children, 99 A.L.R.2d 746.

Right of putative father to visit illegitimate child, 15 A.L.R.3d 887.

Validity and construction of putative father's promise to support or provide for illegitimate child, 20 A.L.R.3d 500.

Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child, 53 A.L.R.3d 566.

Bastardy proceedings: propriety of exhibition of child to jury to show family resemblance, or lack of it, on issue of paternity, 55 A.L.R.3d 1087.

Admissibility, in disputed paternity proceedings, of evidence to rebut mother's claim of prior chastity, 59 A.L.R.3d 659.

Statute of limitations in illegitimacy or bastardy proceedings, 59 A.L.R.3d 685.

Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018.

Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

Right to indigent defendant in paternity suit to have assistance of counsel at state expense, 4 A.L.R.4th 363.

Constitutionality of gender-based classifications in criminal laws proscribing nonsupport of spouse or child, 14 A.L.R.4th 717.