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The concept of soveriegn immunity comes from English common law and the idea that "the king can do no wrong".  It's really antiquated for our times and needs to go. There are some who say that it will create chaos, but under the amendment, judges will still have the SAME protections as anyone else. A judge will only be subject to accountability when he actually deserves to be, at least to the same extent as an ordinary citizen.

In simplist terms, a judge is NOT a king. To provide him with soveriegn immunity is to invite corruption into the office. When my case appeared before the judge, he had never even bothered to read it prior to coming in. He only gave it a few minutes before he declared "I don't follow federal law!" While I naturally wanted to win my case, this wasn't a situation in which I was simply a "sore loser". This was irresponsibility. It never had a fair chance. It was the last case of the day, and it went before him before noon. I joked that he must have wanted to get out onto the golf course and tee off by lunchtime, but it turns out that he REALLY is an avid golfer and has been known to partake of the sport on weekdays.

Good. Play golf. But be accountable. People need the courts to protect them. They shouldn't become their victims!

>I'm in NC and can tell you that the alienation of affections
>law is still in effect here.  As a matter of fact, there have
>been some publicized cases in the past few years.  One was
>filed as a result of a marriage breaking up over an online
>relationship.

That's good to know. As I said, most states have abolished it. Here is the law doing so in GA:

Title 51, Chapter 1, Section 17 (51-1-17)
Adultery, alienation of affections, or criminal conversation with a wife or husband shall not give a right of action to the person's spouse. Rights of action for adultery, alienation of affections, or criminal conversation are abolished.

Now, read it again carefully and then look below to see if the appelate court's ruling makes any sense...:


HYMAN v. MOLDOVAN et al. 65886.
(166 Ga. App. 891) (305 SE2d 648) (1983)

Appellant filed suit against his former wife, her parents, and her present husband, alleging that they had conspired to alienate the affections of appellant's minor son from appellant. Appellees' motions to dismiss for failure to state a claim upon which relief can be granted and, alternatively, lack of personal jurisdiction of appellees were granted by the trial court. This appeal followed.

Appellant argues that the statute abolishes only those alienation of affection suits which involve the loss of spousal affection, and that it does not apply to a case in which the alienation of the affections of a minor child is alleged. However, there is no such limiting language in the statute and we do not intend to place such a strained construction on the statute.

Inasmuch as the main cause of action which appellant alleged in his complaint has been abolished statutorily, the trial court was correct in dismissing the complaint.

Criminal conversation was a tort in the same relative class as alienation of affections. Most states have abolished this tort in recent years. I don't if NC still has it on the books, but you should make certain that it is before you waste any time thinking along this route, especially if your information initially came from a non-attorney.

>Consider researching the recusal process whereas a judge
>orders him/her/it self off the case for being "bias and
>prejudice against xxxxxxxx (the father) and his child(ren)
>namely child1, child2, ....".
>
>Generally speaking, an attorney that is part of a particular
>"good ole boy" judical circle WILL NOT enter such a motion
>(and Order).  Should the situation border on the bizarre, the
>attorney may need to be prepared to enter a second motion the
>next day after the judge denies the first motion.  It may be
>necessary for the attorney to inform the judge  that
>his/her/it ass will be in front of the supreme court if the
>second motion is denied.  
>


A friend of mine going through a divorce moved for the judge to recuse himself. Sometimes, motions are denied. In this case, a HEARING on the motion was denied.

A "good 'ol boy" network is exactly what the court system in question consists of.  In fact, my friend had one attorney who left the case for exactly that reason. They (the attorney) didn't regularly practice law in that particular county, and was simply overwhelmed with intimidation at the level of "society" that existed amongst judges and local attorneys.

Indeed, when my ex filed criminal charges against me (yes, they were false, I'm not a loser), I made certain that I got someone who knew the system itself very, very well. He not only was decent friends with the judge, but had also worked with the case's prosecutor when he was, himself, employed by the county. Since I wasn't guilty in the first place, I probably would still have prevailed. But when the charge was dropped altogether before even going to trial, I knew I picked the right person for the job.

I actually begged him to take my custody case, but he said he would NEVER get involved in domestic law. He once said to me: "I enjoy criminal law because I love being in the courtroom, and on the day of a criminal trial you get to see people on their best behavior. Not so with domoestic law. When people are going through a divorce, you have to see them at their WORST!"   You know, he's right.

I heard about this on National Public Radio this morning. Essentially, it is a state constitutuional amendment proposal which would remove judges' soveriegn immunity and allow them to be sued for unlawful decisions. I'm still undecided about it, but I believe the idea has its merits. I, for one, have had to endure incredible legal harships when a judge once told defiantly (quotes taken literally here) "I don't follow federal law!"  His statement, with the issue at hand, represented a civil rights violation, yet I was not only powerless to have my rights protected, but he enjoyed full freedom of immunity from prosecution. Clearly, a remedy was required which was not available.

http://www.jail4judges.org/

>Courts in most jurisdictions take a decidedly unfavorable
>stance towards Intentional Infliction of Emotional Distress
>claims. It is felt that they are generally frivoulous claims
>for "non-quantifiable harm", and often are appended to other
>more substantive claims merely as an afterthought. Meeting the
>element of conduct that is so outrageous as to be beyond the
>bounds of civilized society is extremely difficult, and
>consequently most claims fail.
>

>In your case, the CP kept the child from a parent with no
>court order giving access. That will likely fail to be seen as
>"conduct that is so outrageous as to be beyond the bounds of
>civilized society."


All you did was copy and paste an article from Wikipedia, which seemed very familiar to me as I read your post. However, you failed to quote this interesting paragraph from the SAME ARTICLE discussing possible examples of intentional infliction of emotion distress (IIED):

"The intent of the act need not be to bring about emotional distress. A reckless disregard for the likelihood of causing emotional distress is sufficient. For example, where a defendant refused to inform a plaintiff of the whereabouts of her child for several years, though that defendant knew where the child was the entire time, the defendant could be held liable for IIED even though he had no intent to cause distress to the parent."

Obviously, quoting wikipedia isn't the same as citing caselaw. However, verdicts in favor for intentional infliction of emotional distress happen quite often. The American Bar Association reported in 2001 that such torts, when they went to trial, were successful fifty-two percent of the time.

As far as whether the conduct of parental alienation constitutes intentional infliction of emotional distress, the following remark comes from the a federal court of appeals case in which the verdict for damages was UPHELD against the alienating mother (jurisdiction fell to the federal court because of the issue of out-of-state diversity):

"The harm of deliberate frustration of a close and affectionate relationship between parent and child, which the evidence permitted the jury to find in the instant case... to a parent who as a result was psychologically damaged strikes us as more potentially a danger to society. Accordingly, the case was properly submitted to the jury, and no error having been claimed with respect to the evidence or instructions, and the amounts of the verdict for compensatory damages and punitive damages being reasonably related to the tort asserted and proven, the judgment below is AFFIRMED"

It should be noted in this case that a FINAL ORDER from a divorce granted sole custody to the mother. She later moved away without informing the father where she was going. It was determined in court that her conduct resulted in the psychological harm to the father, and that his claim was valid nothwistanding his lack of custody.


>Then he will dismiss your case and make you
>pay her attorney fees because you failed to mitigate your
>alleged damages by getting a custody or visitation order. It
>doesn't matter where the child was born, cause you lived in
>another jurisdiction... and later submited to the instant
>jurisdiction.
>

The duty of a damaged party to mitigate his damages is not absolute, but rather as practical as possible through ordinary care and diligence. That is to say, failing to mitigate the situation isn't the same as trying unsuccessfully; an ATTEMPT to mitigate is the duty. In addition, any negligence of the complaining party will not defeat the action, unless there is a violation of a positive legal duty owed to the defendant. (Certainly, however, in this case efforts to mitigate damage were made nonetheless.) However, any issue of mitigation efforts is a moot point; since the defendant's actions were ongoing over a period of time, the principle of "continuous tort" would apply. As a matter of law, positive and continuous torts specifically EXEMPT the plaintiff from any duties to mitigate damages.


>Don't get me wrong. I think CP's who hold their children away
>from a fit NCP should be taken out and tazered repeatedly in
>their holey underwear on the court house steps. I would
>prescribe the same to anyone who harmed children repeatedly.
>

Absolutely! And, as someone whose profession brings them in close contact with some adults who were, as children, alienated from one of their parents by the other, I can attest that the children of alienated parents will only want to do the same when they have, themselves, grown into adulthood. It is a shame that every alienating parent seems to convince themselves of the same erroneous belief: that they can force their own negative feelings about their ex onto their children.


>I just think that getting your situation resolved is one thing
>and  changing current law or opinion is another. The latter
>will not happen in our lifetime, or in time to make a
>difference to our children... so we must play the game for our
>kids while working on changing the rules for our
>grandchildren.
>

Sound wisdom to a degree, but not at the EXCLUSION of all other potential remedies. Again, the threat of a tort could, indeed, serve as a strong DETERRANT against interferring conduct. (The jury in Raftery v Scott, in fact, specifically awarded punitive damages for this very purpose.)

>
>I think your current course of action will escalate the matter
>and your chances of seeing your child even WITH a court order
>will plummet. I hope I am wrong.
>

I assume you are referring to further alienating conduct on the part of the mother. Obviously, she cannot alienate any further that she already has; no access is no access. With a court order for custody or visitation, such denial of access would clearly be in contempt and such conduct could be remedied through domestic courts. Perhaps you mean that she might disappear altogether with the child, courts be damned? If so, that's always a possibility. But doing so at THIS point would only result in a default judgment against her for monetary damages. Family courts may have the lattitude to favor an alienating parent in the name of "the best interest of the child", but a civil damages court does not. Sadly, possession is truly nine-tenths of the law in family courts. An alienating parent is not as immune from the procedures or judgments of a court deciding on monetary damages.

>Is proving the MONETARY DAMAGES you were caused as a direct
>result of the CP taking off with the children. Most of the
>time, the CS would have been paid ANYWAY.
>
>Sure, finding the kids may cost (PI) and serving the ex - not
>part of damages, but part of service and court fees. BUT what
>other ACTUAL MONETARY DAMAGES (that is what is contemplated in
>a tort action) does an NCP suffer by not seeing their
>children?... Nothing readily  measureable.
>
>And that is why a tort case under these circumstances will not
>prevail in most courts.

I'm not sure I'm following you here. Sure, there are economic damages in any tort lawsuit. But there are non-economic damages and even punitive damages, as well. Non-economic damages for pain and suffering are commonplace. Why would the lack of measurability be any more of a barrier for this type of case to prevail than any other case in which recovery is sought in the name of "mental anguish and suffering"? In a real world example, the family of Jessica Simpson sued (and won) NOT for economic compensation of lost wages or lifetime earning potential (for which they would not have been entitled anyway),  but rather for the emotional loss of her life.

It has long been understood that money cannot always compensate for every type of loss or pain or suffering. Yet it is the only practical way that the courts can attempt to remedy such damages.

How familiar with civil tort law are you?

I am frequently amazed to hear how some parents (frequently mothers)  simply take children away from another parent without the "protection" of any court order whatsoever. After a year or so hiding out in another state, a "new status quo" is created and, even though the other parent acted very wrongly, they are "awarded" full custody when court finally doe insue, and the non-custodial victimized parent ends up paying child support and hardly gets to see his children. It is as if there exists actual INCENTIVE to do things the wrong way!

Naturally, I understand that the family court is bound to determine "the best interests of the child" rather than the damage done to the relationship between a parent and his children. However, I am curious why, in situations where children are indeed taken WITHOUT a cout order, we never hear of civil lawsuits for damages against that parent.

There are four elements to proving an intentional tort:
1 - An act was committed (the interference or alientation)
2 - The parent intended or was aware of doing it
3 - Causation: the act caused an effect (lost time, loss of parental control, emotional damage)
4 - Damage resulted

A defending parent would, under a tort case, have three basic possible defenses:
1 - The other parent consented
2 - Self-defense (the alienated parent was a potential threat to the other parent)
3 - Defense of the children (the alienated parent was a potential threat to the children)

These three defenses would be extremely difficult to prove if that parent made no effort to avail themselves of legal remedies, such as a custody proceding.

In addition to parental interference, a case might also be for intentional infliction of emotional distress. In short, this is when the alienating parent takes the children with the intent to cause the other parent emotional harm. While intent might seem difficult to prove at first, any animosity which the alienating parent expressed openly with others against the victim parent can be used to show intent. ("We'll see how he likes it when he wakes up and his children are gone!"

It might be argued that a tort for parental alienation is simply a tort for alienation of affections by a different name. Not so. The tort of alienation of affections (outlawed in some states) implies that the victim was deprived of the affections given to them (usually a spouse). For example, if a man's wife was murdered, he might also sue the murderer for committing an act which resulted in the loss of the affections which he might have otherwised enjoyed from his wife. In contrast, parental control isn't something which a child gives to a parent. Likewise, where "affections" are given voluntarily (symbolized and institutionalized through marriage), the relationship between a parent and a child is more fundamental; a parent is that child's protector, life-giver, and teacher. While both may certainly give and receive affections from one another, the affections are incidental to the nature of the relationship itself.

Also, it might be argued that recognzing a tort for parental interference might simply create more litigation and more animosity between warring parents. Perhaps, and perhaps not. There's no denying that some parents routinely and malicously interfere in the legitimate relationships between their children and other parents. Too often, however, we just say "Oh well, the courts aren't fair". In reality, the courts are bound to solve a different problem: the welfare of CHILDREN. It is civil (tort) litigation in this country provides both a REMEDY for the PARENTS as victims, and a DETERENCE against future transgressions.

Would not at least some alienating parents think twice before running away with their children if they knew they might be sued later? And wouldn't some third parties who might be encouraging this sort of conduct think twice about being a part of such interference if they knew that, unlike family courts, they might end up being a co-defendant? It might just encourage those parents who would otherwise simply take off to through the available legal channels to stay behind and use the proper channels available to them (not to mention marital counseling!). After all, if what they wish to do is found by the family court to be consistent with the best interest of the children, they'll be allowed to go anyway, right?

Finally, it might be argued that a tort would take resources away from the controlling parent which might otherwise be used for the children's welfare, making the children unwilling victims. This argument doesn't hold up, either. First, being a parent doesn't bring about any immunity from any OTHER sort of a tort. ("Yes, I know that I got drunk and ran over the farmer's cow, your honor. But you see, I'm a primary custodial parent....")  That sort of argument implies that one parent has a soverign immunity which the other does not enjoy, certainly an EXTREMELY broad application of the "best interests of the child" standard. Second, because the suing party is also a parent to the same children, any awards could still directly benefit the children. This is quite different than if, for example, that parent was sued by a farmer for killing his cow. In that case, the money would go to a completely unrelated third party with no interest in the children.

Would an award constitute a HARDSHIP on the alienating parent? Perhaps. But again, that's actually at least a PART of the intent of tort justice in the first place!

In reality, very few cases would be subject to a tort for parental alienation or intentional infliction of emotional distress because most parents do go through the court system. This tort would only affect the real "monsters", acting outside the legal system in a completely selfish way solely for their own benefit.

I think it's time we seriously considered these options as a remedy and deterrent.

Comments?

First, I am very sorry for your situation. I have a close friend who divorced, and was quite proud that BOTH of them were able to put their children first; they drew up their own divorce agreement which stipulated fully joint custody, and they even live in the same apartment complex. Your soon-to-be-ex is not putting the children first, she's putting her own happiness first. Would a move 3.5 hours away from their father serve THEIR welfare or her own? (Insert obvious answer here.)

With that, make your OWN responsibilty hereafter to put the children FIRST. If the mother does not, then someone needs to, correct? Be prepared to show a judge that you can provide for the children both physically and financially. And, for goodness sake, don't move out of the house... you may as well hand over the children to her permanently if you do that. Be amicable and calm, but steadfast. If she can live there until the divorce is final, then great. If she cannot live with you, as cold as it sounds, that's HER issue. Accomdodate, don't compensate. Move out, and you're dead in the water.

Stay in touch with people. Talk through things. Keep your friends. Become as HIGHLY involved with your children as possible. Don't do ANYTHING stupid. (If there's an argument, walk away, don't even raise your voice.)

Best of luck

Very sorry to hear about your recent tragedy. When my ex and I first separated, I thought myself luckier than most. Then, three years later, she became extremely alienating, and now I'm definately worse off than many. The point is, things can change, for the better or for the worse. Be prepared as you can for either direction.

The first and most important thing.... DOCUMENT. Do NOT trust your memory. Keep a diary. Take notes. Be EXTREMELY organized. Remember, this is all going to be EVIDENCE later on. It's got to be convincing. It won't be if it's only halfway there. It WILL be if it looks like it was recorded and maintained by a secretary with a severe obsessive/compulsive disorder. Document FACTS and support them as well as you can, and document your feelings, too. I'm currently suing my ex for, among other things, intentional infliction of emotional distress. Thankfully, I have good evidence, but diaries documenting my emotional state in my own words sure would be great about now.

While you're doing all of this on a DAILY basis (have I said to DOCUMENT yet?), you've got to learn about the legal system, whether you are represented by an attorney or not. One of the biggest complaints the ABA receives from litigants is that their attorneys did not sufficiently explain the rules and procedures as they went along, keeping them from making the best decisions possible. Learning about the law is no small task, but no one ever said this will be easy. Just focus on your children if you need motivation.

I understand that the clerk of court (more likely, a clerk at the clerk of court office) told you that you must have an attorney in order to file. That is both not true and true. Technically, you do not. Any citizen can file a suit in this country themselves. This person which whom spoke knows this, but most likely meant their remark as RECOMMENDATION based upon your clear lack of knowledge. AS A RULE: no one at the courthouse can give you LEGAL ADVISE. They are prohibited from doing so. Some even take that prohibition so far as to no give an basic policy or procedural information, too. (At one courthouse, I was happily given some forms when I didn't even need them. At another, when I asked for a copy of the local court rules of civil procedures for that court, I was snappishly told "we don't give advise". So it varies.)

You can get some good information here, but remember that it's not always very credible (my own included). This is a great place for bouncing ideas more than getting hard, cold information. Treat it accordingly.

Finally, keep your head up. You're going to hurt, and that's normal. Don't let it take your pride. Be a bulldog, tenaceous and unswerving. If you feel depression starting to sink in, do NOT indulge it. Once you begin down that path, it will take more strength than you have on your own to get off of it.

No goodbye, just good luck for now