FAMILY DESERTION
The crime of abandonment of a family is regulated in art. 226 of the Penal Code and carries an associated prison sentence of 3 to 6 months or a fine of 6 to 12 months, and the judge may also impose the penalty of special disqualification for the exercise of the right of parental authority, guardianship, custody or foster care for a period of 4 to 10 years. This offense includes two distinct criminal modalities:
- The first consists of failing to comply with the legal duties of care inherent to parental authority, guardianship, custody or foster care. What are the legal duties of care? They are regulated in the Civil Code and include obligations such as caring for the children, keeping them company, feeding them, educating them and providing them with an integral formation, among others.
However, not just any failure to comply with such civil obligations is sufficient to constitute a crime of abandonment of the family. According to the Supreme Court, a permanent and continuous, persistent and lasting breach is required, not sporadic or transitory (STS no. 121/2014). That is to say, abandonment must reach situations that cause a situation of neglect due to a breach of the duties of protection, that is, when a minor or incapable person does not receive due attention from the person who is taking care of him/her, so that he/she is in an extreme situation of helplessness and lack of protection (STS No. 730/2011 of July 12).
- The second consists of failing to provide the necessary assistance legally established for the support of their descendants, ascendants or spouse, who are in need. This type of crime requires, on the one hand, that the family members in question are in a situation of need and, on the other hand, that the perpetrator has failed to provide them with the legally established assistance, assistance that includes not only economic benefits, but also the whole set of duties related to the care and attention of the family member.