Parental Interference as a tort

[annemichellesdad]

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?

[BelleMere]

I would think, just based on our experience, that one reason these kinds of cases don't come up is because in the vast majority of situations where this happens the NCP already has huge legal bills just trying to fight for visitation etc - and simply can't add to that debt with a civil suit he or she might not win. And then there is also the very real fear that added pressure like this would simply cause your ex and kids to disappear entirely or at the very least, heighten conflict beyond recovery. And what would you really win if you won a settlement (made up largely of your own CS or alimony money anyway) but really did lose your kids? Anyway, it depends on the state. In our state (louisiana), parents who disappear with children can be sent to jail, heavily fined or lose custody entirely - all within the perogative of the judge deciding divorce, custody and visitation issues. Not that they ALL get punished, but the judges do enforce that stuff often enough that I am satisfied.

[4honor]

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.

[annemichellesdad]

>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?

[4honor]

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.

The New York Court of Appeals, for example, has stated that "Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous." Howell v. New York Post, 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993).

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."

I am not a lawyer, but I can foresee what is going to happen - the judge is going to say you do not have a court order and therefore you have no basis upon which to bring a motion in his court -- as you sumitted to juridiction in his state (answering the CS order) and thus were subject to all Custody matters in his state - since THAT is where the separation of you and your ex occurred. He will point to the CS order  in his state and say that BM has custody and thus your standing is nothing absent a court order to the contrary and you have failed to get it. 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.

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.

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.


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.

[annemichellesdad]

>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.