"CONSTITUTIONAL RIGHTS", ALIENATION OF AFFECTION, BEST INTEREST OF THE CHILD, CHILD SUPPORT SCAM, CHILDRENS RIGHTS, COURT CORRUPTION, COURT
REFORM, DUE PROCESS RIGHTS, FAMILY CIVIL RIGHTS, FAMILY COURT REFORM, FAMILY RIGHTS, FATHERS RIGHTS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PARENTAL ALIENATION, PARENTAL ALIENATION SYNDROME, PARENTAL RIGHTS, PARENTAL RIGHTS AMENDMENT, PARENTS RIGHTS
Torts Arising Out of Interference with Custody
and Visitation
In adoption abuse, Alienation of
Affection, Best Interest of
the Child, California Parental
Rights Amendment, Child Support, children legal
status, children's behaviour, Civil Rights, Department of
Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Intentional
Infliction of Emotional Distress, judicial corruption, Liberty, motherlessness, mothers rights, Non-custodial
fathers, Non-custodial mothers, parental alienation, Parental Alienation
Syndrome, Parental Kidnapping, Parental Rights
Amendment, Parents rights, Rooker-Feldman
Doctrine, state crimes, Torts on May 29, 2009 at 3:41 pm
© 1995 National Legal Research Group, Inc.
I. INTRODUCTION
In the United States, between 25,000 and 100,000 children are
kidnapped each year. See generally Proposed Federal Parental Kidnapping
Prevention Act: Hearings on S. 105 Before the Subcomm. on Child and Human
Development of the Senate Comm. on Labor and Human Resources, 96th Cong., 1st
Sess. 1 (1970) (statement of Senator Alan Cranston). As a result, “[s]tates
have applied various legislative and judicial remedies to the parental
kidnapping problem. These remedies include uniform laws concerning
child custody jurisdiction, tougher criminal sanctions against parental
kidnapping, and traditional civil remedies.” Campbell, “The Tort of
Custodial Interference Toward a More Complete Remedy to Parental Kidnappings,”
1983 U. Ill. L. Rev. 229.
In addition, the federal
government has added its legislative efforts to the cause of prevention of
kidnapping by enacting the Parental Kidnapping Prevention Act, 28 U.S.C. 1738
(A).
Rather than focusing on the jurisdictional aspects of parental
kidnapping, this article focuses on tort remedies that are available to
parents when other parents or third parties interfere with custodial or
visitation rights. The article begins with a discussion of the remedy
that is nearly universally available, the tort of intentional infliction of
emotional distress resulting from the denial of custody. Next, the article
discusses the somewhat less popular but easier to prove tort of custodial
interference. In the subsequent section, the article takes a detour by focusing
on the rights of parents who have been awarded visitation, not custody. In some
jurisdictions, parents have been awarded damages when the custodial parents or
others deny the noncustodial parents their right to visitation, or otherwise
cause the children to reject the noncustodial parents.
The next section discusses the tort of alienation of
affections in the context of child custody and visitation. Although this
tort continues to thrive in some states, many states have statutorily abolished
it.
Finally, the article
concludes with a general discussion of tort law in the area of child custody
and visitation, and the author makes two recommendations for changes.
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The most well recognized tort arising out of custodial
interference is intentional infliction of emotional distress. The
Restatement (Second) of Torts 46(1) (1977) provides the nearly universally
adopted definition of intentional infliction of emotional distress:
(1)
One who by extreme and outrageous conduct intentionally or recklessly causes
emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily
harm.
Thus, pursuant to this definition, a person would be
liable for damages if he intentionally or recklessly commits extreme and
outrageous acts that cause emotional distress. As noted by comment d to 46,
this tort has severe limitations:
The
cases thus far decided have found liability only where the defendant’s conduct
has been extreme and outrageous. It has not been enough that the defendant has
acted with an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!”
As this comment indicates, in order for a plaintiff to recover for
intentional infliction of emotional distress, the defendant’s actions
must not merely be “tortious or criminal” or characterized by “malice.” Id.
Rather, the defendant’s conduct must “go beyond all possible bounds
of decency” and cause the typical member of the community to
exclaim, “Outrageous!” Id.
Because a defendant may only be held liable for intentional
infliction of emotional distress if his conduct is outrageous, it is extremely
difficult for a plaintiff to recover under this theory. Nonetheless, in some circumstances, where the
noncustodial parent or some other third party interferes with the right to
custody of the custodial parent, a claim for intentional infliction of emotional
distress will be recognized. For example, in Zaharias v. Gammill,
844 P.2d 137 (Okla. 1992), the wife, who was the mother of the children,
removed the children from the husband’s home. Several days later, the husband
filed an action for legal separation. The court awarded the husband custody of
the children. Nonetheless, the husband alleged that the wife’s parents
aided the wife in concealing the children from the husband, even after the
wife’s parents had become aware of the husband’s court-ordered right to
custody. For this reason, the husband filed a claim for intentional
infliction of emotional distress. The trial court dismissed the claim, and the
husband appealed. On appeal to the Supreme Court of Oklahoma, the court
reversed the decision of the trial court, finding that if the husband could
prove that the wife’s parents’ acts were “extreme” or “outrageous,” the husband
could be awarded damages for intentional infliction of emotional distress. Id.
at 141.
Likewise, the court determined that the noncustodial parent had
committed acts which permitted a recovery for intentional infliction of
emotional distress in Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y.
1978). In Kajtazi, the husband and wife separated in 1977. Subsequently, the
wife commenced an action for divorce. During the pendency of the action, the
wife was awarded custody of the child. Soon after this award, however, the
husband, the husband’s brother, and the husband’s father informed the wife that
they would defy the order and take custody of the child. Subsequently, the
husband visited the wife and abducted the child. At the time of the abduction,
the child was in need of surgery. The wife filed a habeas corpus petition. The
husband’s brother and father appeared at the habeas corpus proceeding, but the
husband did not appear. The husband’s brother and father informed the court
that they did not know the whereabouts of the husband. In fact, the husband’s
brother and father did know that the husband had spirited the child away to
Yugoslavia. In a later proceeding, the husband’s brother and father informed
the court that the husband and the child would never return to the United
States. Id.at 18. For this reason, the wife commenced an action for,
among other claims, intentional infliction of emotional distress against the
husband, the husband’s brother, and the husband’s father.
In determining whether the defendants’ acts were sufficiently
outrageous to permit recovery, the court first noted that “intentional
infliction of serious mental distress without physical impact can constitute an
independent tort which is actionable per se.” Id. at 20 (emphasis
added). Hence, in order for a plaintiff to recover, although the defendant’s
actions must be outrageous, the plaintiff need only have suffered mental
distress, and a physical impact upon the plaintiff is not necessary.
Further, the court held
that the defendant’s actions in abducting the child and spiriting him away to a
foreign country allowed recovery for intentional infliction of emotional distress:
It
is difficult to conceive of intentional conduct more calculated to cause severe
emotional distress than the outrageous conduct of the defendant [husband] in
surreptitiously abducting the infant, from his mother who had legal custody,
and falsely imprisoning him in Yugoslavia. This outrageous conduct constitutes
the distinct tort of intentional infliction of mental suffering under New York
decisional law.
Id. Hence, if the noncustodial parent abducts the child from the
custodial parent and spirits the child away to a foreign country, the
noncustodial parent could be held liable for intentional infliction of
emotional distress. The noncustodial parent would be well advised to
avoid such actions, as the court in Kajtazi held in 1978 that
the abducting parent was liable in the amount of $50 for each day that the
child was missing.
The court reached a similar conclusion in Bartanus v. Lis,
332 Pa. Super. 48, 480 A.2d 1178 (1984). In Bartanus, a child was
born to the husband and wife in 1961. In 1963, the husband and wife divorced,
and the wife moved to Germany. Apparently, the wife ceased having any
relationship with the husband or the child. From 1964 until 1972, the husband,
who was employed by the United States government, was assigned to various posts.
During this time, the husband’s sister and brother-in-law raised the child. In
1972, the husband retired. From 1972 until 1977, the husband began to spend
much time with the child, although the child continued to reside with his aunt
and uncle. In 1977, the husband proposed to the aunt and uncle that the child
begin to reside with the husband. This suggestion caused the aunt and uncle to
fly into a rage. The aunt and uncle began to prevent the child from visiting
with his father. Furthermore, they told the child that the husband did not love
the child and that the husband’s house had rats and was dirty. In spite of the
actions of the aunt and uncle, the child accompanied his father on a trip to
Germany. The aunt and uncle wrote letters to the child that described the
husband as “a whoremaster, liar and con artist who did not love his son.” 480
A.2d at 1183. Eventually, the aunt and uncle persuaded the child to stay away
from his father. Because of these actions, the husband sued the aunt and uncle
on the grounds of intentional infliction of emotional distress.
The court held that the husband had stated a claim for intentional
infliction of emotional distress. In reaching this conclusion, the
court focused on the fact that the aunt and uncle intentionally manipulated the
child in order to specifically cause distress to the husband:
The
complaint alleges intentional misrepresentations made to an adolescent by his
aunt and uncle concerning the morals and behavior of his father. The actions
outlined in the complaint may be of the extreme and outrageous nature
contemplated by Comment d to RESTATEMENT 46. Accepting [the husband’s] version
of the facts as true, as we must at this time, it appears that [the aunt and
uncle] intentionally manipulated [the husband’s] son in a manner “peculiarly
calculated” to cause [the husband] serious mental or emotional distress. Id. If
[the aunt and uncle] did act intentionally, there need not be a showing that
they were aware of the natural and probable consequences of their actions.
Rather, it is enough that [the husband] was substantially certain to suffer
severe mental or emotional distress as a result of their alleged tortious
conduct.
Id. at 1185. Thus, if
third parties manipulate the child in order to cause the parent distress, the
parent has a claim for intentional infliction of emotional distress.
Although most courts that have considered the issue have
determined that the custodial parent may state a claim for intentional
infliction of emotional distress when the noncustodial parent or some other
third party interferes with the custodial parent’s right to custody, some
courts have refused to recognize this claim. The Fourth District Court of
Appeals of Illinois refused to recognize the claim, even though the
circumstances were severe, in the case of Whitehorse v. Critchfield,
144 Ill. App. 3d 192, 494 N.E.2d 743 (4th Dist. 1986). In Whitehorse, the
father was a member of an Indian tribe in Utah. The daughter was 17 years old
and attended school in Utah. The defendants were teachers in the daughter’s
school. In 1982, the defendants purchased a one-way ticket for the child and
placed the child on a plane that was bound for Illinois. The defendants knew
that the father did not desire that the child leave his home. Upon the child’s
arrival in Illinois, the defendants “counseled, compelled, and induced her not
to return to plaintiff’s home or reveal her location to him.” 494 N.E.2d at
744. The defendants also caused the daughter to write fictitious letters to
themselves, in order to mislead the father about the whereabouts of the child.
Also, the defendants lied to the police, the F.B.I., and school officials about
the child’s location. In addition, the defendants attempted to convert the
child to their religion. Subsequently, the defendants attempted to adopt the
child, but ultimately returned the child to the parents.
The father filed an action in Illinois against the defendants for
intentional infliction of emotional distress. The trial court dismissed the
claim for failure to state a cause of action. Even though the acts committed by
the defendants were most outrageous, the decision by the trial court was upheld
on appeal. The court believed that a recognition of this tort in the area of
child custody would have “the potential for abuse.” Id. The court failed to
consider whether the deterrence value of the recognition of the claim would
outweigh the alleged “potential for abuse.” See also Curtis v. State
Department for Children & Their Families, 522 A.2d 203 (R.I. 1987)
(no claim for intentional infliction of emotional distress where the
defendants, who were employed by the state, restricted access to the child from
the parents for three days because the defendants suspected that the child was
a victim of child abuse); Settle v. Settle, 858 F. Supp. 610 (S.D.
W.Va. 1994) (mother was not liable for intentional infliction of emotional
distress where she moved the children from Florida to West Virginia and then
demanded that the husband post a $5,000 bond before she would allow him to
visit with the children).
III. TORTIOUS INTERFERENCE WITH PARENTAL RIGHTS
A related tort that has been recognized by some courts is the tort
of interference with the parent-child relationship. This tort is distinct from
the tort of intentional infliction of emotional distress. Plante v.
Engel, 124 N.H. 213, 469 A.2d 1299 (1983). Section 700 of the Restatement
(Second) of Torts (1977) states:
One
who, with the knowledge that the parent does not consent, abducts or otherwise
compels or induces a minor child to leave a parent legally entitled to its
custody or not to return to the parent after it has been left him, is subject
to liability to the parent.
As stated in the
Restatement, if a defendant abducts or causes a minor child to leave the
custody of a parent, the defendant is subject to liability to that parent.
Unlike the tort of intentional infliction of emotional distress, however, there
is no requirement that the plaintiff demonstrate outrageous conduct.
Several jurisdictions have adopted the tort of parental
interference as written in the Restatement. See, e.g., Lloyd v.
Loeffler, 694 F.2d 489 (7th Cir. 1982) (Wisconsin law); Bennett v.
Bennett, 682 F.2d 1039 (2d Cir. 1982) (District of Columbia law); Ruffalo
v. United States, 590 F. Supp. 706 (W.D. Mo. 1984); Plante
v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983); Kramer v. Leineweber,
642 S.W.2d 364 (Mo. Ct. App. 1982); LaGrenade v. Gordon, 46 N.C.
App. 329, 264 S.E.2d 757 (1980); Spencer v. Terebelo, 373 So. 2d
200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979); McBride v.
Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Lisker v. City of New
York, 72 Misc. 2d 85, 338 N.Y.S.2d 359 (Sup. Ct., Queens County
1972); Rosefield v. Rosefield, 221 Cal. 2d 431, 34 Cal. Rptr. 479
(1963).
For example, in Lloyd v. Loeffler, 694 F.2d 489 (7th
Cir. 1982), the court held in an opinion by Judge Posner that the father stated
a claim for custodial interference. In Lloyd, the child was born in 1978 in
Washington, D.C. The parents were not married. In 1979, a court in Maryland
awarded custody of the child to the father. The mother was awarded visitation
rights. The mother subsequently married a man named Earl McMahan.
In July 1979, the mother
and Earl went to the child’s babysitter’s house in order to pick up the child
for a visitation and take the child to the mother’s parents’ house in
Wisconsin. The mother was required to return the child on August 5, 1979.
Nonetheless, the child was never returned. The father hired private detectives
in attempts to locate the child, but the detectives failed. In 1980, the father
filed an action against the mother, Earl, and the mother’s parents in federal
district court in Wisconsin, alleging that the defendants had interfered with
his right to custody. The trial court awarded judgment for the father, and the
grandparents appealed. The wife and Earl did not appeal, as they had
disappeared with the child.
On appeal, the Seventh Circuit Court of Appeals held that,
pursuant to the law of Wisconsin, the trial court rightfully awarded
judgment to the father for his claim of interference with his custodial
rights. The grandparents attempted to argue that because there was no
physical injury to the father, he could not bring a claim for interference with
his custodial rights. Judge Posner did not agree:
The
only question therefore is whether it would draw the line at physical injury
and refuse to recognize any tort liability for abduction even though the effect
on the parent’s interest in the companionship of the child is the same. This
would be an arbitrary distinction, and we doubt very much that Wisconsin would
make it. We know of no state that, having swallowed the camel of allowing
parents to sue for intangible loss of companionship as well as pecuniary loss,
has strained at the gnat of allowing that loss to be recovered when it is
caused by abduction rather than physical injury. Moreover, since abductions are
always deliberate and physical injuries usually, as in [Shockley v. Prier, 66
Wis. 2d 394, 225 N.W.2d 495 (1975)], merely negligent, it would be anomalous to
allow liability only in the latter case.
Lloyd v. Loeffler, supra, 694 F.2d at 496. Hence, regardless of whether physical
injury results, if the noncustodial parent or some third party abducts a child
from the rightful custody of a parent, the defendant is liable for damages to
the custodial parent.
Of course, since the tort of custodial interference is
actionable even without proof of physical injury, it may be difficult to
quantify damages. The court addressed this particular but important issue in
Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983). In Plante, the plaintiff
was the father of the children. The father was awarded custody of the children
pursuant to a divorce decree. Contrary to the terms of the decree, the mother
moved to Texas with the children, without the consent of the father. The father
alleged that the mother’s parents interfered with his custodial rights by
defying the order of custody and assisting the mother’s attempt to spirit the
children away to Texas. For this reason, the father sought damages against the
wife’s parents. Nonetheless, the trial court dismissed the father’s claim for
failure to state a cognizable cause of action, and the father appealed.
On appeal to the Supreme
Court of New Hampshire, the court reversed the trial court’s decision to
dismiss the father’s claim. The court first noted that in New Hampshire,
parental rights were considered fundamental:
The
high place accorded filiation stems not from the material bond whereby services
are provided to each other by parent and child but from a recognition that
there is a sanctity in the union of parent and child that transcends economies
and deserves the utmost respect. Because this relationship is so intimately
connected with the parent’s person, we hold that where there is an intentional
interference with a person’s custody of his or her child, an injured parent is
entitled to a remedy that completely compensates him or her.
469 A.2d at 1301-02.
Thus, because of the “sanctity in the union of parent and child,” where a
person interferes with the parent-child relationship, that person should be
held liable in damages.
The court next addressed the issue of damages. The court held that
there were two elements of damages that could be awarded to the plaintiff,
including (1) “expenses incurred in recovering the child, including legal
fees,” and (2) “compensation for the loss of the child’s services
and/or his care, comfort and companionship.” Id. at 1302. Thus, a parent
may recover all out-of-pocket costs associated with reobtaining custody, as
well as any damages for the loss of the parent-child relationship.
Although most courts that have considered the issue have
recognized the tort of custodial interference, some courts have refused to
recognize this tort. See, e.g., Whitehorse v. Critchfield, 144 Ill.
App. 3d 192, 494 N.E.2d 743 (1986) (no civil cause of action for tortious
interference with custodial parent’s right to custody in Illinois); Zaharias
v. Gammill, 844 P.2d 137 (Okla. 1992) (no tort of intentional interference
with custodial rights in Oklahoma).
IV. INTERFERENCE WITH VISITATION
Following a divorce, it is often the case that the noncustodial
parent’s only connection with his or her child is the right to visitation.
Thus, a denial of visitation for any substantial period of time could
work to remove the noncustodial parent from even the memory of the young child.
For this and other reasons, some courts have recognized the tort of
interference with visitation rights, or intentional infliction of emotional
distress, when the custodial parent or others interfere with the
noncustodial parent’s right to visitation.
One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife’s parents took the wife and the children to the wife’s parents’ home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband’s visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed.
One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife’s parents took the wife and the children to the wife’s parents’ home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband’s visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed.
The Ohio Court of Appeals first held that, pursuant to a statute
in Ohio, the defendants could be held liable for interference with visitation.
594 N.E.2d at 1011-12. Next, the court held that the maternal grandparents
could be held liable for the common-law tort of intentional infliction of
emotional distress for their interference with the husband’s custody rights.
Interestingly, the only fact cited by the court for its decision that the
maternal grandparents could be held liable by a jury for intentional infliction
of emotional distress was that the grandparents “decided to support their
daughter in her decision to violate a visitation order issued by a domestic
relations court, and thereby to frustrate [the husband’s] desire to enjoy his
visitation rights.” Id. at 1012. Thus, even without other facts that indicate
“outrageousness,” if a person simply promotes the violation of a visitation
order, he may be held liable for intentional infliction of emotional distress
in Ohio. See also Ruffalo v. United States, 590 F. Supp. 70 (W.D.
Mo. 1984) (federal government was liable for interfering with the mother’s
visitation rights by discouraging the father, who was in the federal Witness
Protection Program, from allowing the mother to visit with the child). But
see R.J. v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991) (father
could maintain no action for intentional infliction of emotional distress
against the wife).
In contrast to the decision in Ohio, most other courts that have
determined that the defendant could be held liable for violating the
noncustodial parent’s right to visitation have determined that the defendant
could only be subject to liability if he has concealed the child for a long
period of time or has committed some other egregious act. For example, the
maternal grandparents were held liable for intentional infliction of emotional
distress after they assisted their daughter’s attempt to completely disappear
with the child in Pankratz v. Willis, 155 Ariz. 8, 744
P.2d 1182 (1987). In Pankratz, the wife married the husband in 1979. Shortly
thereafter, the marriage produced a daughter. In 1981 and 1982, the husband and
wife engaged in a protracted custody battle. In December 1982, the wife was
awarded custody of the minor child, and the husband was awarded visitation.
However, the tensions between the former spouses continued. In 1983, while the
wife and the child were at a motel near Disneyland, the wife called her parents
and informed them that she would not return home. Subsequently, the wife and
the child disappeared, and had not been located at the time the husband filed a
civil action against the maternal grandparents. In his complaint, the husband
alleged that the wife was financially and emotionally dependent on her parents,
and that the parents had enabled the wife and child to completely disappear,
causing him extreme emotional distress. The husband noted that the wife had
never supported herself, the grandparents paid the wife’s attorney’s fees for
the divorce proceeding, the wife resided with the grandparents during the
separation, the wife deposited all of her funds into her parents’ checking
account, and the wife had called her parents from Geneva, Switzerland around
the time that she disappeared. In fact, the wife had called her parents seven
times since the day she disappeared with the child. In addition, the husband
presented evidence that he had suffered emotional distress following the
disappearance. 744 P.2d at 1186. Based upon this evidence, the trial court let
stand a jury award of $125,000 against the maternal grandparents, and the
grandparents appealed.
On appeal to the Court of Appeals of Arizona, the grandparents
alleged that they had not intentionally or recklessly committed outrageous
acts, and that the husband had not suffered distress. However, the court of
appeals held that the jury could have reasonably found the defendants liable.
The wife was completely dependent upon her parents for financial resources,
and, thus, the jury could have concluded that the grandparents financially
assisted in the disappearance. Also, the evidence indicated that the grandfather
was hostile to the husband and encouraged the wife to disappear. The
court concluded that these facts indicated that the grandparents had
intentionally committed outrageous acts. Id.at 1189. Because the
evidence also indicated that the husband had suffered emotional distress as a
result of the grandparents’ conduct, the decision by the trial court to award
damages to the husband was affirmed. Thus, if a defendant assists in the
complete disappearance of the child, he may be held liable to a parent who has
visitation rights for intentional infliction of emotional distress.
In addition, a custodial parent could be held liable for
the creation of a negative relationship between the noncustodial parent and the
child. The court reached this conclusion in Bhama v. Bhama,
169 Mich. App. 73, 425 N.W.2d 733 (1988). In Bhama, the parties were divorced
in 1977. The wife was awarded custody of the parties’ children. In 1982, this
decree was modified, and the court awarded custody to the husband. In 1986, the
wife filed a claim for intentional infliction of emotional distress, alleging
that the husband had used his psychiatric training in order to “`systematically
manipulate, instigate, involuntarily convert, intimidate, indoctrinate and
brainwash the minor children into totally rejecting’ her to `the point of
extreme antagonism and instilled hatred.'” 425 N.W.2d at 734. The
trial court ruled for the husband, concluding that “the creation of negative
relationships does not amount to outrageous conduct.” Id. The wife appealed.
On appeal, the decision by the trial court to summarily dismiss
the wife’s claim for intentional infliction of emotional distress was
overruled. In entering this decision, the Court of Appeals of Michigan
concluded that the “abuse of a relationship” could be
considered outrageous conduct which would justify an award to the wife. Id. at
736. Thus, if the custodial parent manipulates a child in order to create a
negative relationship between the noncustodial parent and the child, the
custodial parent could be held liable for intentional infliction of emotional
distress. See also Raferty v. Scott, 756 F.2d 335 (4th Cir.
1985) (wife was liable for intentional infliction of emotional distress where
she successfully destroyed the relationship between the husband and the
child); Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991)
(custodial parent could be held liable where she prevented the father from
visiting with the child for many years).
Although some courts have held that defendants could be held liable
for interfering with visitation or creating a negative relationship between the
noncustodial parent and the child, other courts have simply refused to
recognize claims by parents who only have rights to visitation. One recent case
where the court refused to recognize any claim by the noncustodial parent
was Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994). In Cosner, the
wife gave birth to a child in 1980. The husband and wife divorced in 1982.
Pursuant to the divorce decree, the wife was awarded custody of the child, and
the husband was granted visitation rights. In March 1993, the husband filed a
claim against the wife and other third parties, alleging that they had
intentionally interfered with his parental rights. Furthermore, the
husband alleged intentional infliction of emotional distress because the
defendants had concealed his daughter and prevented his visitation. The
trial court dismissed the husband’s complaint for failure to state a cause of
action, and the husband appealed. Id. at 1246.
The decision by the
trial court to dismiss the husband’s claims was affirmed by the Supreme Court
of Wyoming. First, the court specifically limited the application of the tort
of interference with parental rights to cases where the plaintiff has the right
to custody, not merely the right to visitation. In reaching this conclusion,
the court stated that it believed that it was in the best interests of children
to promote harmony and discourage “intrafamily warfare.” Id. at 1247.
Furthermore, “[c]reating this tort would create a new wrong. It would place
innocent children in the middle of a vigorous, probably vicious, lawsuit
between their parents.” Id. (emphasis in original).
Second, the court
affirmed the dismissal of the husband’s claim for intentional infliction of
emotional distress. The court noted that the allegations of conduct were
identical to the conduct alleged with respect to the claim for interference
with visitation. Because the court believed that no facts presented supported
an allegation of outrageousness by the defendants, the husband could not
recover under a theory of intentional infliction of emotional distress.
Another court also
clearly held that the noncustodial parent could not recover damages from the
custodial parent for the custodial parent’s violation of a visitation order in
Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985). In Owens, the marriage of
the parties produced one child in 1981. In 1982, the parties were judicially
separated. The judgment of separation awarded custody of the parties’ child to
the wife, subject to the visitation rights of the husband. After the date of
the judgment of separation, the wife “consistently” prevented the husband from
exercising his visitation rights. Id. at 921. Accordingly, the husband filed a
claim against the wife for damages, alleging that the wife should be held
liable since she repeatedly violated the husband’s right to visitation. The
trial court dismissed the husband’s complaint, concluding that the husband
failed to state a claim upon which the court could grant relief. The husband
appealed.
The Court of Appeal of
Louisiana, Second Circuit, agreed with the trial court that the husband’s claim
should be dismissed. In reaching this conclusion, the court reasoned that other
remedies were available to the husband; therefore, the husband did not need
damages:
The
plaintiff has several remedies available to him here. He may institute
proceedings to enforce his visitation rights and he may obtain attorney’s fees
for the pursuit of such actions. . . . He may institute contempt proceedings or
he may institute proceedings to obtain custody of the child for himself. There
is evidence in the record that he has pursued these other remedies
simultaneously with this suit for damages for which he has no cause of action.
Id. at 922. Thus, according to the analysis by the court in
Owens, because the husband could file an action for contempt or an
action to seek custody, he should not be able to file a private action for
damages against the wife for her denial of visitation. See also McGrady
v. Rosenbaum, 62 Misc. 2d 182, 308 N.Y.S.2d 181 (Sup. Ct., New York County
1970) (remedy against spouse who violates order respecting visitation rights is
by way of contempt, not by an action for damages); Gleiss v. Newman,
141 Wis. 2d 379, 415 N.W.2d 845 (Ct. App. 1987) (noncustodial parent does not
have a cause of action in tort to recover damages against custodial parent for
interfering with noncustodial parent’s visitation rights).
While courts have argued that damages for contempt will tend to
deter violations of visitation decrees, in reality it appears that no
damages actually deter abductions. Also, damages for contempt may not compensate the noncustodial
parent if the parent suffers extreme mental anguish from the loss of the
relationship with his child. Furthermore, the noncustodial parent may have to
undergo psychiatric treatment, and he should not bear the burden of these costs
when the damage was proximately caused by the denial of visitation by the
custodial parent. Also, suppose, for example, that the noncustodial parent
suffers physical ailments as a result of the custodial parents’ intentional
tort. Contempt damages will not compensate him for these injuries.
In addition, fairness dictates a different result than that
reached by the court in Owens. A custodial parent in Louisiana may recover
damages against the noncustodial parent if the noncustodial parent interferes
with the custodial parent’s custody rights. Spencer v. Terebelo,
373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979). The
court in Spencer reached this conclusion even though the remedy of contempt was
available to the custodial parent. Therefore, where either the noncustodial
parent or the custodial parent suffers damages as a result of the interference
with the parent-child relationship, either parent should be able to recover
damages.
V. ALIENATION OF AFFECTIONS
Unlike the torts of
intentional infliction of emotional distress and interference with custody or
visitation, courts are most reluctant to award damages on a theory of
alienation of affections when a party interferes with the other party’s right to
custody or visitation.
Essentially, there are three elements to the claim of
alienation of affections.First, the plaintiff must prove wrongful conduct
by the defendant. Second, the plaintiff must prove a loss of
consortium. Third, the plaintiff must prove that the defendant’s
actions caused the loss of consortium. Hunt v. Hunt, 309 N.W.2d 818
(S.D. 1981).
The courts’ reluctance to consider claims of alienation of
affections is partly due to the fact that some states have, by statute,
eliminated the tort of alienation of affections. See Hyman v. Moldovan, 166
Ga. App. 891, 305 S.E.2d 648 (1983); Raferty v. Scott, 756 F.2d 335 (4th Cir.
1985) (Virginia law).
Other courts have
concluded that, regardless of the statutory authority, a parent should not be
able to recover damages for alienation of a child’s affections. See, e.g., R.J.
v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991); Hester v. Barnett, 723 S.W.2d
544 (Mo. Ct. App. 1987); Bock v. Lindquist, 278 N.W.2d 326 (Minn. 1979);
Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984).
Nonetheless, in some unusual circumstances, in jurisdictions that
have not completely eliminated this tort, a parent may be able to recover
damages under the theory of alienation of a child’s affections. For example,
in Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991), the parties were
divorced in 1968. Pursuant to the divorce decree, the wife was awarded custody
of the parties’ son. From 1968 to 1971, however, the parties continued to
litigate the issues of custody and visitation. In 1971, during a battle over
custody and visitation, the wife took the son and left the parties’ home state.
The husband did not see the child at any time after this incident. The wife and
son had moved to Oregon and the son was registered in a school under an assumed
name. From 1971 until 1985, the wife prevented the husband from having any
contact with the child. In 1988, the wife filed a claim to collect child
support arrearages. The husband counterclaimed, alleging tortious interference
with the father-son relationship. The trial court dismissed the husband’s
counterclaim on the basis that the husband had failed to state a cognizable
claim under the law of South Dakota. Id. at 486. The husband appealed.
On appeal to the Supreme Court of South Dakota, the husband argued
that he had stated a claim under the doctrine of alienation of affections. The
court agreed that the husband had stated such a claim. In reaching this
conclusion, the court did acknowledge, however, that many states had abolished
the claim of alienation of affections. Id. at 488. Nonetheless, South
Dakota had not abolished this claim, and the facts indicated that the husband
had a viable claim against the wife for alienation of his child’s affections:
In
the present case, Mother kept Son’s whereabouts secret from Father for some
fourteen years. Son is now an adult. That fact eliminates the three policy
considerations usually advanced for refusing to recognize the cause of action:
best interests of the child; availability of other remedies; and opening the
floodgates to ongoing custody and visitation battles. Therefore, we hold that
Father states a cause of action in tort against Mother for alienation of Son’s
affections.
Id. at 489. Thus, as the
court stated, where a custodial parent prevents the noncustodial parent from
having a relationship with his child for many years, if the jurisdiction has
not eliminated the cause of action for alienation of affections, the
noncustodial parent may recover under a theory of alienation of affections. See
also Strode v. Gleason, 9 Wash. App. 13, 510 P.2d 250 (1973) (parent has cause
of action against a third party who maliciously alienates the affections of a
minor child).
VI. CONCLUSION
As the above authority
indicates, most jurisdictions have made efforts to deter interference with
custody by providing tort remedies to injured parents. Nonetheless, parental
kidnapping is a tremendous problem in this country, as one author noted:
Parental kidnapping has become a major problem in the United
States in the last
decade. The battle between divorced or separated parents for custody of their
children often escalates into guerilla warfare. Frequently, the parent who lost
custody of the children in a divorce proceeding steals the children from the
custodial parent and establishes a new identity in a distant part of the
country. This struggle between parents for their children can cause severe
emotional problems in the children. Various reports estimate that up to 100,000
parental kidnappings occur each year. Moreover, the rising divorce rate
suggests that parental kidnapping will continue to increase in coming years.
The harm to both parents and children caused by parental kidnapping requires
that courts and legislatures deal with this problem, yet the complexity and
personal nature of the parental kidnapping make formulating a solution
difficult.
Campbell, “The Tort of Custodial Interference Toward a
More Complete Remedy to Parental Kidnappings,” 1983 U. Ill. L. Rev.
229. As this passage notes, because of the rise in divorce rates, and the
“guerilla warfare” of modern divorces, parents frequently spirit children away
from their “opponent” in divorce matters. By providing a variety of civil and
criminal remedies, states have attempted, with little success, to deter these
kidnappings.
As long as the divorce
rate remains high and divorce proceedings are conducted in accordance with the
traditional American advocacy system, Americans will continue to battle over
children and prevent parents from exercising their parental rights. Civil
remedies have, in fact, had little deterrent value. Nonetheless, civil damages
do help compensate injured parents. As one author has noted, because victims
need to be compensated and because justice requires that tort feasors be held
accountable, courts should recognize torts that arise out of custodial
relationships:
Courts
should adjudicate these claims because of the lack of other adequate remedies.
The Restatement of Torts’ remedy allows a custodial parent to receive damages
but offers no compensation to the noncustodial parent. Also, the possibility
exists that the harm could come to a custodial parent without that parent
actually losing custody. Thus, courts should not dismiss the action on the
premise that it is derivative of other torts. Intentional infliction of
emotional distress is merely the application of an existing tort to a new area.
A court should award damages to a parent for intentional infliction of emotional
distress in the child custody context. This application is necessary to
compensate legitimate injuries and to hold tortfeasors accountable for their
acts.
Bargamian, “Intentional Infliction of Emotional Distress
in the Child Custody Contest: Proposed Guidelines,” 36 Wayne L. Rev.
124, 142 (1989). Thus, because all other remedies are inadequate, victims of
intentional infliction of emotional distress in the child custody or visitation
context should be able to recover damages against the tort feasor. For this
reason, tort remedies should be expanded in two ways.
First, jurisdictions that
have not already done so should adopt the tort of parental interference.
Because it requires proof of “outrageous” conduct, the tort of
intentional infliction of emotional distress is generally an inadequate remedy.
Apparently, with a few exceptions, because of the popularity of denials of
custody and visitation, it is difficult to prove that such denials are
outrageous in modern society.
Second, states should provide
remedies for parents who have been denied visitation. The only explanation that
courts have provided for refusing to grant remedies for interference with
visitation is that this tort would “encourage claims for petty
infractions.” Gleiss v. Newman, 141 Wis. 2d 379, 415 N.W.2d
845, 846 (Ct. App. 1987). The courts present no evidence that this evil has
occurred in any state that has adopted remedies for parents who only have
visitation rights. In fact, in the states that have adopted torts
resulting from denials of visitation, it is rare to find more than one
appellate case where this tort was an issue.
In addition,
jurisdictions that have provided damage remedies only to custodial parents have
raised serious equal protection questions. Why should the parent who won the
custody battle have a right to recover damages, but not the other parent? Since
women are usually the custodial parents, does the failure to provide equal
remedies to noncustodial parents unfairly discriminate against men? While these
questions are beyond the scope of this article, it is difficult to imagine how
a jurisdiction could award damages only to custodial parents yet provide
satisfactory answers to these two questions. The better approach is to allow a
cause of action in tort for deprivation of either custody or visitation.
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© 1995 National Legal Research Group, Inc.
I. INTRODUCTION
In the United States, between 25,000 and 100,000 children are
kidnapped each year. See generally Proposed Federal Parental Kidnapping
Prevention Act: Hearings on S. 105 Before the Subcomm. on Child and Human
Development of the Senate Comm. on Labor and Human Resources, 96th Cong., 1st
Sess. 1 (1970) (statement of Senator Alan Cranston). As a result, “[s]tates
have applied various legislative and judicial remedies to the parental
kidnapping problem. These remedies include uniform laws concerning
child custody jurisdiction, tougher criminal sanctions against parental
kidnapping, and traditional civil remedies.” Campbell, “The Tort of
Custodial Interference Toward a More Complete Remedy to Parental Kidnappings,”
1983 U. Ill. L. Rev. 229.
In addition, the federal
government has added its legislative efforts to the cause of prevention of
kidnapping by enacting the Parental Kidnapping Prevention Act, 28 U.S.C. 1738
(A).
Rather than focusing on the jurisdictional aspects of parental
kidnapping, this article focuses on tort remedies that are available to
parents when other parents or third parties interfere with custodial or
visitation rights. The article begins with a discussion of the remedy
that is nearly universally available, the tort of intentional infliction of emotional
distress resulting from the denial of custody. Next, the article discusses the
somewhat less popular but easier to prove tort of custodial interference. In
the subsequent section, the article takes a detour by focusing on the rights of
parents who have been awarded visitation, not custody. In some jurisdictions,
parents have been awarded damages when the custodial parents or others deny the
noncustodial parents their right to visitation, or otherwise cause the children
to reject the noncustodial parents.
The next section discusses the tort of alienation of
affections in the context of child custody and visitation. Although this
tort continues to thrive in some states, many states have statutorily abolished
it.
Finally, the article
concludes with a general discussion of tort law in the area of child custody
and visitation, and the author makes two recommendations for changes.
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The most well recognized tort arising out of custodial
interference is intentional infliction of emotional distress. The
Restatement (Second) of Torts 46(1) (1977) provides the nearly universally
adopted definition of intentional infliction of emotional distress:
(1)
One who by extreme and outrageous conduct intentionally or recklessly causes
emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily
harm.
Thus, pursuant to this definition, a person would be
liable for damages if he intentionally or recklessly commits extreme and
outrageous acts that cause emotional distress. As noted by comment d to 46,
this tort has severe limitations:
The
cases thus far decided have found liability only where the defendant’s conduct
has been extreme and outrageous. It has not been enough that the defendant has
acted with an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!”
As this comment indicates, in order for a plaintiff to recover for
intentional infliction of emotional distress, the defendant’s actions
must not merely be “tortious or criminal” or characterized by “malice.” Id.
Rather, the defendant’s conduct must “go beyond all possible bounds
of decency” and cause the typical member of the community to
exclaim, “Outrageous!” Id.
Because a defendant may only be held liable for intentional
infliction of emotional distress if his conduct is outrageous, it is extremely
difficult for a plaintiff to recover under this theory. Nonetheless, in some circumstances, where the
noncustodial parent or some other third party interferes with the right to
custody of the custodial parent, a claim for intentional infliction of
emotional distress will be recognized. For example, in Zaharias v.
Gammill, 844 P.2d 137 (Okla. 1992), the wife, who was the mother of the
children, removed the children from the husband’s home. Several days later, the
husband filed an action for legal separation. The court awarded the husband
custody of the children. Nonetheless, the husband alleged that the
wife’s parents aided the wife in concealing the children from the husband, even
after the wife’s parents had become aware of the husband’s court-ordered right
to custody. For this reason, the husband filed a claim for intentional
infliction of emotional distress. The trial court dismissed the claim, and the
husband appealed. On appeal to the Supreme Court of Oklahoma, the court
reversed the decision of the trial court, finding that if the husband could
prove that the wife’s parents’ acts were “extreme” or “outrageous,” the husband
could be awarded damages for intentional infliction of emotional distress. Id.
at 141.
Likewise, the court determined that the noncustodial parent had committed
acts which permitted a recovery for intentional infliction of emotional
distress in Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y. 1978). In
Kajtazi, the husband and wife separated in 1977. Subsequently, the wife
commenced an action for divorce. During the pendency of the action, the wife
was awarded custody of the child. Soon after this award, however, the husband,
the husband’s brother, and the husband’s father informed the wife that they
would defy the order and take custody of the child. Subsequently, the husband
visited the wife and abducted the child. At the time of the abduction, the
child was in need of surgery. The wife filed a habeas corpus petition. The
husband’s brother and father appeared at the habeas corpus proceeding, but the
husband did not appear. The husband’s brother and father informed the court
that they did not know the whereabouts of the husband. In fact, the husband’s
brother and father did know that the husband had spirited the child away to
Yugoslavia. In a later proceeding, the husband’s brother and father informed
the court that the husband and the child would never return to the United
States. Id.at 18. For this reason, the wife commenced an action for,
among other claims, intentional infliction of emotional distress against the
husband, the husband’s brother, and the husband’s father.
In determining whether the defendants’ acts were sufficiently
outrageous to permit recovery, the court first noted that “intentional
infliction of serious mental distress without physical impact can constitute an
independent tort which is actionable per se.” Id. at 20 (emphasis
added). Hence, in order for a plaintiff to recover, although the defendant’s
actions must be outrageous, the plaintiff need only have suffered mental
distress, and a physical impact upon the plaintiff is not necessary.
Further, the court held
that the defendant’s actions in abducting the child and spiriting him away to a
foreign country allowed recovery for intentional infliction of emotional
distress:
It
is difficult to conceive of intentional conduct more calculated to cause severe
emotional distress than the outrageous conduct of the defendant [husband] in
surreptitiously abducting the infant, from his mother who had legal custody,
and falsely imprisoning him in Yugoslavia. This outrageous conduct constitutes
the distinct tort of intentional infliction of mental suffering under New York
decisional law.
Id. Hence, if the noncustodial parent abducts the child from the
custodial parent and spirits the child away to a foreign country, the
noncustodial parent could be held liable for intentional infliction of
emotional distress. The noncustodial parent would be well advised to
avoid such actions, as the court in Kajtazi held in 1978 that
the abducting parent was liable in the amount of $50 for each day that the
child was missing.
The court reached a similar conclusion in Bartanus v. Lis,
332 Pa. Super. 48, 480 A.2d 1178 (1984). In Bartanus, a child was
born to the husband and wife in 1961. In 1963, the husband and wife divorced,
and the wife moved to Germany. Apparently, the wife ceased having any
relationship with the husband or the child. From 1964 until 1972, the husband,
who was employed by the United States government, was assigned to various
posts. During this time, the husband’s sister and brother-in-law raised the
child. In 1972, the husband retired. From 1972 until 1977, the husband began to
spend much time with the child, although the child continued to reside with his
aunt and uncle. In 1977, the husband proposed to the aunt and uncle that the
child begin to reside with the husband. This suggestion caused the aunt and
uncle to fly into a rage. The aunt and uncle began to prevent the child from
visiting with his father. Furthermore, they told the child that the husband did
not love the child and that the husband’s house had rats and was dirty. In
spite of the actions of the aunt and uncle, the child accompanied his father on
a trip to Germany. The aunt and uncle wrote letters to the child that described
the husband as “a whoremaster, liar and con artist who did not love his son.”
480 A.2d at 1183. Eventually, the aunt and uncle persuaded the child to stay
away from his father. Because of these actions, the husband sued the aunt and
uncle on the grounds of intentional infliction of emotional distress.
The court held that the husband had stated a claim for intentional
infliction of emotional distress. In reaching this conclusion, the
court focused on the fact that the aunt and uncle intentionally manipulated the
child in order to specifically cause distress to the husband:
The
complaint alleges intentional misrepresentations made to an adolescent by his
aunt and uncle concerning the morals and behavior of his father. The actions
outlined in the complaint may be of the extreme and outrageous nature
contemplated by Comment d to RESTATEMENT 46. Accepting [the husband’s] version
of the facts as true, as we must at this time, it appears that [the aunt and
uncle] intentionally manipulated [the husband’s] son in a manner “peculiarly calculated”
to cause [the husband] serious mental or emotional distress. Id. If [the aunt
and uncle] did act intentionally, there need not be a showing that they were
aware of the natural and probable consequences of their actions. Rather, it is
enough that [the husband] was substantially certain to suffer severe mental or
emotional distress as a result of their alleged tortious conduct.
Id. at 1185. Thus, if
third parties manipulate the child in order to cause the parent distress, the
parent has a claim for intentional infliction of emotional distress.
Although most courts that have considered the issue have
determined that the custodial parent may state a claim for intentional
infliction of emotional distress when the noncustodial parent or some other
third party interferes with the custodial parent’s right to custody, some
courts have refused to recognize this claim. The Fourth District Court of
Appeals of Illinois refused to recognize the claim, even though the
circumstances were severe, in the case of Whitehorse v. Critchfield,
144 Ill. App. 3d 192, 494 N.E.2d 743 (4th Dist. 1986). In Whitehorse, the
father was a member of an Indian tribe in Utah. The daughter was 17 years old
and attended school in Utah. The defendants were teachers in the daughter’s
school. In 1982, the defendants purchased a one-way ticket for the child and
placed the child on a plane that was bound for Illinois. The defendants knew
that the father did not desire that the child leave his home. Upon the child’s
arrival in Illinois, the defendants “counseled, compelled, and induced her not
to return to plaintiff’s home or reveal her location to him.” 494 N.E.2d at
744. The defendants also caused the daughter to write fictitious letters to
themselves, in order to mislead the father about the whereabouts of the child.
Also, the defendants lied to the police, the F.B.I., and school officials about
the child’s location. In addition, the defendants attempted to convert the
child to their religion. Subsequently, the defendants attempted to adopt the
child, but ultimately returned the child to the parents.
The father filed an action in Illinois against the defendants for
intentional infliction of emotional distress. The trial court dismissed the
claim for failure to state a cause of action. Even though the acts committed by
the defendants were most outrageous, the decision by the trial court was upheld
on appeal. The court believed that a recognition of this tort in the area of
child custody would have “the potential for abuse.” Id. The court failed to
consider whether the deterrence value of the recognition of the claim would
outweigh the alleged “potential for abuse.” See also Curtis v. State
Department for Children & Their Families, 522 A.2d 203 (R.I. 1987)
(no claim for intentional infliction of emotional distress where the
defendants, who were employed by the state, restricted access to the child from
the parents for three days because the defendants suspected that the child was
a victim of child abuse); Settle v. Settle, 858 F. Supp. 610 (S.D.
W.Va. 1994) (mother was not liable for intentional infliction of emotional
distress where she moved the children from Florida to West Virginia and then
demanded that the husband post a $5,000 bond before she would allow him to
visit with the children).
III. TORTIOUS INTERFERENCE WITH PARENTAL RIGHTS
A related tort that has been recognized by some courts is the tort
of interference with the parent-child relationship. This tort is distinct from
the tort of intentional infliction of emotional distress. Plante v.
Engel, 124 N.H. 213, 469 A.2d 1299 (1983). Section 700 of the Restatement
(Second) of Torts (1977) states:
One
who, with the knowledge that the parent does not consent, abducts or otherwise
compels or induces a minor child to leave a parent legally entitled to its
custody or not to return to the parent after it has been left him, is subject
to liability to the parent.
As stated in the
Restatement, if a defendant abducts or causes a minor child to leave the
custody of a parent, the defendant is subject to liability to that parent.
Unlike the tort of intentional infliction of emotional distress, however, there
is no requirement that the plaintiff demonstrate outrageous conduct.
Several jurisdictions have adopted the tort of parental
interference as written in the Restatement. See, e.g., Lloyd v. Loeffler,
694 F.2d 489 (7th Cir. 1982) (Wisconsin law); Bennett v. Bennett,
682 F.2d 1039 (2d Cir. 1982) (District of Columbia law); Ruffalo v. United
States, 590 F. Supp. 706 (W.D. Mo. 1984); Plante v. Engel, 124
N.H. 213, 469 A.2d 1299 (1983); Kramer v. Leineweber, 642 S.W.2d
364 (Mo. Ct. App. 1982); LaGrenade v. Gordon, 46 N.C. App. 329, 264
S.E.2d 757 (1980); Spencer v. Terebelo, 373 So. 2d 200 (La. Ct.
App.), writ refused, 376 So. 2d 960 (La. 1979); McBride v. Magnuson,
282 Or. 433, 578 P.2d 1259 (1978); Lisker v. City of New York, 72
Misc. 2d 85, 338 N.Y.S.2d 359 (Sup. Ct., Queens County 1972); Rosefield
v. Rosefield, 221 Cal. 2d 431, 34 Cal. Rptr. 479 (1963).
For example, in Lloyd v. Loeffler, 694 F.2d 489 (7th
Cir. 1982), the court held in an opinion by Judge Posner that the father stated
a claim for custodial interference. In Lloyd, the child was born in 1978 in
Washington, D.C. The parents were not married. In 1979, a court in Maryland
awarded custody of the child to the father. The mother was awarded visitation
rights. The mother subsequently married a man named Earl McMahan.
In July 1979, the mother
and Earl went to the child’s babysitter’s house in order to pick up the child
for a visitation and take the child to the mother’s parents’ house in Wisconsin.
The mother was required to return the child on August 5, 1979. Nonetheless, the
child was never returned. The father hired private detectives in attempts to
locate the child, but the detectives failed. In 1980, the father filed an
action against the mother, Earl, and the mother’s parents in federal district
court in Wisconsin, alleging that the defendants had interfered with his right
to custody. The trial court awarded judgment for the father, and the
grandparents appealed. The wife and Earl did not appeal, as they had
disappeared with the child.
On appeal, the Seventh Circuit Court of Appeals held that,
pursuant to the law of Wisconsin, the trial court rightfully awarded
judgment to the father for his claim of interference with his custodial
rights. The grandparents attempted to argue that because there was no
physical injury to the father, he could not bring a claim for interference with
his custodial rights. Judge Posner did not agree:
The
only question therefore is whether it would draw the line at physical injury
and refuse to recognize any tort liability for abduction even though the effect
on the parent’s interest in the companionship of the child is the same. This
would be an arbitrary distinction, and we doubt very much that Wisconsin would
make it. We know of no state that, having swallowed the camel of allowing
parents to sue for intangible loss of companionship as well as pecuniary loss,
has strained at the gnat of allowing that loss to be recovered when it is
caused by abduction rather than physical injury. Moreover, since abductions are
always deliberate and physical injuries usually, as in [Shockley v. Prier, 66
Wis. 2d 394, 225 N.W.2d 495 (1975)], merely negligent, it would be anomalous to
allow liability only in the latter case.
Lloyd v. Loeffler, supra, 694 F.2d at 496. Hence, regardless of whether physical
injury results, if the noncustodial parent or some third party abducts a child
from the rightful custody of a parent, the defendant is liable for damages to
the custodial parent.
Of course, since the tort of custodial interference is
actionable even without proof of physical injury, it may be difficult to
quantify damages. The court addressed this particular but important issue in
Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983). In Plante, the plaintiff
was the father of the children. The father was awarded custody of the children
pursuant to a divorce decree. Contrary to the terms of the decree, the mother
moved to Texas with the children, without the consent of the father. The father
alleged that the mother’s parents interfered with his custodial rights by
defying the order of custody and assisting the mother’s attempt to spirit the
children away to Texas. For this reason, the father sought damages against the
wife’s parents. Nonetheless, the trial court dismissed the father’s claim for
failure to state a cognizable cause of action, and the father appealed.
On appeal to the Supreme
Court of New Hampshire, the court reversed the trial court’s decision to
dismiss the father’s claim. The court first noted that in New Hampshire,
parental rights were considered fundamental:
The
high place accorded filiation stems not from the material bond whereby services
are provided to each other by parent and child but from a recognition that
there is a sanctity in the union of parent and child that transcends economies
and deserves the utmost respect. Because this relationship is so intimately
connected with the parent’s person, we hold that where there is an intentional
interference with a person’s custody of his or her child, an injured parent is
entitled to a remedy that completely compensates him or her.
469 A.2d at 1301-02.
Thus, because of the “sanctity in the union of parent and child,” where a
person interferes with the parent-child relationship, that person should be
held liable in damages.
The court next addressed the issue of damages. The court held that
there were two elements of damages that could be awarded to the plaintiff,
including (1) “expenses incurred in recovering the child, including legal
fees,” and (2) “compensation for the loss of the child’s services
and/or his care, comfort and companionship.” Id. at 1302. Thus, a parent
may recover all out-of-pocket costs associated with reobtaining custody, as
well as any damages for the loss of the parent-child relationship.
Although most courts that have considered the issue have
recognized the tort of custodial interference, some courts have refused to
recognize this tort. See, e.g., Whitehorse v. Critchfield, 144 Ill.
App. 3d 192, 494 N.E.2d 743 (1986) (no civil cause of action for tortious
interference with custodial parent’s right to custody in Illinois); Zaharias
v. Gammill, 844 P.2d 137 (Okla. 1992) (no tort of intentional interference
with custodial rights in Oklahoma).
IV. INTERFERENCE WITH VISITATION
Following a divorce, it is often the case that the noncustodial
parent’s only connection with his or her child is the right to visitation.
Thus, a denial of visitation for any substantial period of time could
work to remove the noncustodial parent from even the memory of the young child.
For this and other reasons, some courts have recognized the tort of
interference with visitation rights, or intentional infliction of emotional
distress, when the custodial parent or others interfere with the noncustodial
parent’s right to visitation.
One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife’s parents took the wife and the children to the wife’s parents’ home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband’s visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed.
One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife’s parents took the wife and the children to the wife’s parents’ home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband’s visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed.
The Ohio Court of Appeals first held that, pursuant to a statute
in Ohio, the defendants could be held liable for interference with visitation.
594 N.E.2d at 1011-12. Next, the court held that the maternal grandparents
could be held liable for the common-law tort of intentional infliction of
emotional distress for their interference with the husband’s custody rights.
Interestingly, the only fact cited by the court for its decision that the
maternal grandparents could be held liable by a jury for intentional infliction
of emotional distress was that the grandparents “decided to support their
daughter in her decision to violate a visitation order issued by a domestic
relations court, and thereby to frustrate [the husband’s] desire to enjoy his
visitation rights.” Id. at 1012. Thus, even without other facts that indicate
“outrageousness,” if a person simply promotes the violation of a visitation
order, he may be held liable for intentional infliction of emotional distress
in Ohio. See also Ruffalo v. United States, 590 F. Supp. 70 (W.D.
Mo. 1984) (federal government was liable for interfering with the mother’s
visitation rights by discouraging the father, who was in the federal Witness
Protection Program, from allowing the mother to visit with the child). But
see R.J. v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991) (father
could maintain no action for intentional infliction of emotional distress
against the wife).
In contrast to the decision in Ohio, most other courts that have
determined that the defendant could be held liable for violating the
noncustodial parent’s right to visitation have determined that the defendant
could only be subject to liability if he has concealed the child for a long
period of time or has committed some other egregious act. For example, the
maternal grandparents were held liable for intentional infliction of emotional
distress after they assisted their daughter’s attempt to completely disappear
with the child in Pankratz v. Willis, 155 Ariz. 8, 744
P.2d 1182 (1987). In Pankratz, the wife married the husband in 1979. Shortly
thereafter, the marriage produced a daughter. In 1981 and 1982, the husband and
wife engaged in a protracted custody battle. In December 1982, the wife was
awarded custody of the minor child, and the husband was awarded visitation.
However, the tensions between the former spouses continued. In 1983, while the
wife and the child were at a motel near Disneyland, the wife called her parents
and informed them that she would not return home. Subsequently, the wife and
the child disappeared, and had not been located at the time the husband filed a
civil action against the maternal grandparents. In his complaint, the husband
alleged that the wife was financially and emotionally dependent on her parents,
and that the parents had enabled the wife and child to completely disappear,
causing him extreme emotional distress. The husband noted that the wife had
never supported herself, the grandparents paid the wife’s attorney’s fees for
the divorce proceeding, the wife resided with the grandparents during the
separation, the wife deposited all of her funds into her parents’ checking
account, and the wife had called her parents from Geneva, Switzerland around
the time that she disappeared. In fact, the wife had called her parents seven
times since the day she disappeared with the child. In addition, the husband
presented evidence that he had suffered emotional distress following the
disappearance. 744 P.2d at 1186. Based upon this evidence, the trial court let
stand a jury award of $125,000 against the maternal grandparents, and the
grandparents appealed.
On appeal to the Court of Appeals of Arizona, the grandparents
alleged that they had not intentionally or recklessly committed outrageous acts,
and that the husband had not suffered distress. However, the court of appeals
held that the jury could have reasonably found the defendants liable. The wife
was completely dependent upon her parents for financial resources, and, thus,
the jury could have concluded that the grandparents financially assisted in the
disappearance. Also, the evidence indicated that the grandfather was hostile to
the husband and encouraged the wife to disappear. The court concluded
that these facts indicated that the grandparents had intentionally committed
outrageous acts. Id.at 1189. Because the evidence also indicated
that the husband had suffered emotional distress as a result of the
grandparents’ conduct, the decision by the trial court to award damages to the
husband was affirmed. Thus, if a defendant assists in the complete
disappearance of the child, he may be held liable to a parent who has
visitation rights for intentional infliction of emotional distress.
In addition, a custodial parent could be held liable for
the creation of a negative relationship between the noncustodial parent and the
child. The court reached this conclusion in Bhama v. Bhama,
169 Mich. App. 73, 425 N.W.2d 733 (1988). In Bhama, the parties were divorced
in 1977. The wife was awarded custody of the parties’ children. In 1982, this
decree was modified, and the court awarded custody to the husband. In 1986, the
wife filed a claim for intentional infliction of emotional distress, alleging
that the husband had used his psychiatric training in order to “`systematically
manipulate, instigate, involuntarily convert, intimidate, indoctrinate and
brainwash the minor children into totally rejecting’ her to `the point of
extreme antagonism and instilled hatred.'” 425 N.W.2d at 734. The
trial court ruled for the husband, concluding that “the creation of negative
relationships does not amount to outrageous conduct.” Id. The wife appealed.
On appeal, the decision by the trial court to summarily dismiss
the wife’s claim for intentional infliction of emotional distress was
overruled. In entering this decision, the Court of Appeals of Michigan
concluded that the “abuse of a relationship” could be
considered outrageous conduct which would justify an award to the wife. Id. at
736. Thus, if the custodial parent manipulates a child in order to create a
negative relationship between the noncustodial parent and the child, the
custodial parent could be held liable for intentional infliction of emotional
distress. See also Raferty v. Scott, 756 F.2d 335 (4th Cir.
1985) (wife was liable for intentional infliction of emotional distress where
she successfully destroyed the relationship between the husband and the
child); Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991)
(custodial parent could be held liable where she prevented the father from
visiting with the child for many years).
Although some courts have held that defendants could be held
liable for interfering with visitation or creating a negative relationship
between the noncustodial parent and the child, other courts have simply refused
to recognize claims by parents who only have rights to visitation. One recent
case where the court refused to recognize any claim by the noncustodial parent
was Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994). In Cosner, the
wife gave birth to a child in 1980. The husband and wife divorced in 1982.
Pursuant to the divorce decree, the wife was awarded custody of the child, and
the husband was granted visitation rights. In March 1993, the husband filed a
claim against the wife and other third parties, alleging that they had
intentionally interfered with his parental rights. Furthermore, the
husband alleged intentional infliction of emotional distress because the
defendants had concealed his daughter and prevented his visitation. The
trial court dismissed the husband’s complaint for failure to state a cause of
action, and the husband appealed. Id. at 1246.
The decision by the
trial court to dismiss the husband’s claims was affirmed by the Supreme Court
of Wyoming. First, the court specifically limited the application of the tort
of interference with parental rights to cases where the plaintiff has the right
to custody, not merely the right to visitation. In reaching this conclusion,
the court stated that it believed that it was in the best interests of children
to promote harmony and discourage “intrafamily warfare.” Id. at 1247.
Furthermore, “[c]reating this tort would create a new wrong. It would place
innocent children in the middle of a vigorous, probably vicious, lawsuit
between their parents.” Id. (emphasis in original).
Second, the court
affirmed the dismissal of the husband’s claim for intentional infliction of
emotional distress. The court noted that the allegations of conduct were
identical to the conduct alleged with respect to the claim for interference
with visitation. Because the court believed that no facts presented supported
an allegation of outrageousness by the defendants, the husband could not
recover under a theory of intentional infliction of emotional distress.
Another court also
clearly held that the noncustodial parent could not recover damages from the
custodial parent for the custodial parent’s violation of a visitation order in
Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985). In Owens, the marriage of
the parties produced one child in 1981. In 1982, the parties were judicially separated.
The judgment of separation awarded custody of the parties’ child to the wife,
subject to the visitation rights of the husband. After the date of the judgment
of separation, the wife “consistently” prevented the husband from exercising
his visitation rights. Id. at 921. Accordingly, the husband filed a claim
against the wife for damages, alleging that the wife should be held liable
since she repeatedly violated the husband’s right to visitation. The trial
court dismissed the husband’s complaint, concluding that the husband failed to
state a claim upon which the court could grant relief. The husband appealed.
The Court of Appeal of
Louisiana, Second Circuit, agreed with the trial court that the husband’s claim
should be dismissed. In reaching this conclusion, the court reasoned that other
remedies were available to the husband; therefore, the husband did not need
damages:
The
plaintiff has several remedies available to him here. He may institute
proceedings to enforce his visitation rights and he may obtain attorney’s fees
for the pursuit of such actions. . . . He may institute contempt proceedings or
he may institute proceedings to obtain custody of the child for himself. There
is evidence in the record that he has pursued these other remedies simultaneously
with this suit for damages for which he has no cause of action.
Id. at 922. Thus, according to the analysis by the court in
Owens, because the husband could file an action for contempt or an
action to seek custody, he should not be able to file a private action for
damages against the wife for her denial of visitation. See also McGrady
v. Rosenbaum, 62 Misc. 2d 182, 308 N.Y.S.2d 181 (Sup. Ct., New York County
1970) (remedy against spouse who violates order respecting visitation rights is
by way of contempt, not by an action for damages); Gleiss v. Newman,
141 Wis. 2d 379, 415 N.W.2d 845 (Ct. App. 1987) (noncustodial parent does not
have a cause of action in tort to recover damages against custodial parent for
interfering with noncustodial parent’s visitation rights).
While courts have argued that damages for contempt will tend to
deter violations of visitation decrees, in reality it appears that no
damages actually deter abductions. Also, damages for contempt may not compensate the noncustodial
parent if the parent suffers extreme mental anguish from the loss of the
relationship with his child. Furthermore, the noncustodial parent may have to
undergo psychiatric treatment, and he should not bear the burden of these costs
when the damage was proximately caused by the denial of visitation by the
custodial parent. Also, suppose, for example, that the noncustodial parent
suffers physical ailments as a result of the custodial parents’ intentional
tort. Contempt damages will not compensate him for these injuries.
In addition, fairness dictates a different result than that
reached by the court in Owens. A custodial parent in Louisiana may recover
damages against the noncustodial parent if the noncustodial parent interferes
with the custodial parent’s custody rights. Spencer v. Terebelo,
373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979). The
court in Spencer reached this conclusion even though the remedy of contempt was
available to the custodial parent. Therefore, where either the noncustodial
parent or the custodial parent suffers damages as a result of the interference
with the parent-child relationship, either parent should be able to recover
damages.
V. ALIENATION OF AFFECTIONS
Unlike the torts of
intentional infliction of emotional distress and interference with custody or
visitation, courts are most reluctant to award damages on a theory of
alienation of affections when a party interferes with the other party’s right to
custody or visitation.
Essentially, there are three elements to the claim of
alienation of affections.First, the plaintiff must prove wrongful conduct
by the defendant. Second, the plaintiff must prove a loss of
consortium. Third, the plaintiff must prove that the defendant’s
actions caused the loss of consortium. Hunt v. Hunt, 309 N.W.2d 818
(S.D. 1981).
The courts’ reluctance to consider claims of alienation of
affections is partly due to the fact that some states have, by statute,
eliminated the tort of alienation of affections. See Hyman v. Moldovan, 166
Ga. App. 891, 305 S.E.2d 648 (1983); Raferty v. Scott, 756 F.2d 335 (4th Cir.
1985) (Virginia law).
Other courts have
concluded that, regardless of the statutory authority, a parent should not be
able to recover damages for alienation of a child’s affections. See, e.g., R.J.
v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991); Hester v. Barnett, 723 S.W.2d
544 (Mo. Ct. App. 1987); Bock v. Lindquist, 278 N.W.2d 326 (Minn. 1979);
Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984).
Nonetheless, in some unusual circumstances, in jurisdictions that
have not completely eliminated this tort, a parent may be able to recover
damages under the theory of alienation of a child’s affections. For example,
in Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991), the parties were
divorced in 1968. Pursuant to the divorce decree, the wife was awarded custody
of the parties’ son. From 1968 to 1971, however, the parties continued to
litigate the issues of custody and visitation. In 1971, during a battle over
custody and visitation, the wife took the son and left the parties’ home state.
The husband did not see the child at any time after this incident. The wife and
son had moved to Oregon and the son was registered in a school under an assumed
name. From 1971 until 1985, the wife prevented the husband from having any
contact with the child. In 1988, the wife filed a claim to collect child
support arrearages. The husband counterclaimed, alleging tortious interference
with the father-son relationship. The trial court dismissed the husband’s
counterclaim on the basis that the husband had failed to state a cognizable
claim under the law of South Dakota. Id. at 486. The husband appealed.
On appeal to the Supreme Court of South Dakota, the husband argued
that he had stated a claim under the doctrine of alienation of affections. The
court agreed that the husband had stated such a claim. In reaching this
conclusion, the court did acknowledge, however, that many states had abolished
the claim of alienation of affections. Id. at 488. Nonetheless, South
Dakota had not abolished this claim, and the facts indicated that the husband
had a viable claim against the wife for alienation of his child’s affections:
In
the present case, Mother kept Son’s whereabouts secret from Father for some
fourteen years. Son is now an adult. That fact eliminates the three policy
considerations usually advanced for refusing to recognize the cause of action:
best interests of the child; availability of other remedies; and opening the
floodgates to ongoing custody and visitation battles. Therefore, we hold that
Father states a cause of action in tort against Mother for alienation of Son’s
affections.
Id. at 489. Thus, as the
court stated, where a custodial parent prevents the noncustodial parent from
having a relationship with his child for many years, if the jurisdiction has
not eliminated the cause of action for alienation of affections, the
noncustodial parent may recover under a theory of alienation of affections. See
also Strode v. Gleason, 9 Wash. App. 13, 510 P.2d 250 (1973) (parent has cause
of action against a third party who maliciously alienates the affections of a
minor child).
VI. CONCLUSION
As the above authority
indicates, most jurisdictions have made efforts to deter interference with
custody by providing tort remedies to injured parents. Nonetheless, parental
kidnapping is a tremendous problem in this country, as one author noted:
Parental kidnapping has become a major problem in the United
States in the last
decade. The battle between divorced or separated parents for custody of their
children often escalates into guerilla warfare. Frequently, the parent who lost
custody of the children in a divorce proceeding steals the children from the
custodial parent and establishes a new identity in a distant part of the
country. This struggle between parents for their children can cause severe
emotional problems in the children. Various reports estimate that up to 100,000
parental kidnappings occur each year. Moreover, the rising divorce rate
suggests that parental kidnapping will continue to increase in coming years.
The harm to both parents and children caused by parental kidnapping requires
that courts and legislatures deal with this problem, yet the complexity and personal
nature of the parental kidnapping make formulating a solution difficult.
Campbell, “The Tort of Custodial Interference Toward a
More Complete Remedy to Parental Kidnappings,” 1983 U. Ill. L. Rev.
229. As this passage notes, because of the rise in divorce rates, and the
“guerilla warfare” of modern divorces, parents frequently spirit children away
from their “opponent” in divorce matters. By providing a variety of civil and
criminal remedies, states have attempted, with little success, to deter these
kidnappings.
As long as the divorce
rate remains high and divorce proceedings are conducted in accordance with the
traditional American advocacy system, Americans will continue to battle over
children and prevent parents from exercising their parental rights. Civil remedies
have, in fact, had little deterrent value. Nonetheless, civil damages do help
compensate injured parents. As one author has noted, because victims need to be
compensated and because justice requires that tort feasors be held accountable,
courts should recognize torts that arise out of custodial relationships:
Courts
should adjudicate these claims because of the lack of other adequate remedies.
The Restatement of Torts’ remedy allows a custodial parent to receive damages
but offers no compensation to the noncustodial parent. Also, the possibility
exists that the harm could come to a custodial parent without that parent
actually losing custody. Thus, courts should not dismiss the action on the
premise that it is derivative of other torts. Intentional infliction of
emotional distress is merely the application of an existing tort to a new area.
A court should award damages to a parent for intentional infliction of
emotional distress in the child custody context. This application is necessary
to compensate legitimate injuries and to hold tortfeasors accountable for their
acts.
Bargamian, “Intentional Infliction of Emotional Distress
in the Child Custody Contest: Proposed Guidelines,” 36 Wayne L. Rev.
124, 142 (1989). Thus, because all other remedies are inadequate, victims of
intentional infliction of emotional distress in the child custody or visitation
context should be able to recover damages against the tort feasor. For this
reason, tort remedies should be expanded in two ways.
First, jurisdictions that have
not already done so should adopt the tort of parental interference. Because it
requires proof of “outrageous” conduct, the tort of intentional
infliction of emotional distress is generally an inadequate remedy. Apparently,
with a few exceptions, because of the popularity of denials of custody and
visitation, it is difficult to prove that such denials are outrageous in modern
society.
Second, states should provide
remedies for parents who have been denied visitation. The only explanation that
courts have provided for refusing to grant remedies for interference with
visitation is that this tort would “encourage claims for petty
infractions.” Gleiss v. Newman, 141 Wis. 2d 379, 415 N.W.2d
845, 846 (Ct. App. 1987). The courts present no evidence that this evil has
occurred in any state that has adopted remedies for parents who only have
visitation rights. In fact, in the states that have adopted torts
resulting from denials of visitation, it is rare to find more than one
appellate case where this tort was an issue.
In addition,
jurisdictions that have provided damage remedies only to custodial parents have
raised serious equal protection questions. Why should the parent who won the
custody battle have a right to recover damages, but not the other parent? Since
women are usually the custodial parents, does the failure to provide equal
remedies to noncustodial parents unfairly discriminate against men? While these
questions are beyond the scope of this article, it is difficult to imagine how
a jurisdiction could award damages only to custodial parents yet provide
satisfactory answers to these two questions. The better approach is to allow a
cause of action in tort for deprivation of either custody or visitation.
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