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© 1995 National Legal Research Group, Inc. 


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. 


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. 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 husbands 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). 


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). 


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. 

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. 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. 


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. SeeHyman 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). 


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 tortfeasors 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 tortfeasor. 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. 

Tortious Interference with Parental Rights: A New and Important Remedy for "Left Behind Parents".​

The Lawletter Vol 37 No 3 Fred Shackelford, Senior Attorney, National Legal Research Group


Proving that the common law continues to evolve, the Virginia Supreme Court has recognized a new cause of action for tortious interference with parental rights.  In Wyatt v. McDermott, ___ Va. ___, 725 S.E.2d 555 (2012), an unmarried woman allegedly conspired with attorneys, an adoption agency, and a Utah couple to place her newborn child up for adoption without the knowledge or consent of the child's father.  The father sued the couple, the attorneys, and the agency for tortiously interfering with his parental rights, and the Wyatt court was called upon to decide whether this tort exists in Virginia.  Noting that no statute provided the answer, the court recognized that the parent-child relationship is a constitutionally protected and valuable right.


The court observed that under English common law, a cause of action existed to provide a father with recourse for abduction of a son or heir who was rendering services.  The court also noted that the overwhelming majority of courts in other states have allowed a cause of action for tortious interference with the parent-child relationship.  Although the General Assembly has abolished the cause of action for alienation of affections, Va. Code Ann. § 8.01-220, the Wyatt court distinguished the two torts:


"Tortious interference with parental or custodial relationship" intimates that the complaining parent has been deprived of his/her parental or custodial rights; in other words, but for the tortious interference, the complaining parent would be able to exercise some measure of control over his/her child's care, rearing, safety, well‑being, etc.  By contrast, "alienation of affections" connotes only that the parent is not able to enjoy the company of his/her child; this cause of action does not suggest that the offending party has removed parental or custodial authority from the complaining parent. ___ Va. at ___, 725 S.E.2d at 562 (internal quotation marks omitted).


The court concluded that a cause of action for tortious interference with parental rights is consistent with existing common law, and set forth its elements as follows:


(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child;

(2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights;

(3) the outside party's intentional interference caused harm to the complaining parent's parental or custodial relationship with his/her child; and

(4) damages resulted from such interference. Id. (internal quotation marks omitted). The court decided that damages may include both tangible and intangible elements, including compensatory damages for expenses incurred in seeking recovery of the child, lost services, lost companionship, and mental anguish. 

Although no injunctive relief may be granted, punitive damages may be recovered when the interference is intentional and there are compensatory damages.  The court added that a claim cannot be asserted by one of the child's parents against the other parent if both parents have substantially equal custodial rights and that an affirmative defense of justification may be asserted when the defendant had a reasonable, good-faith belief that interference was necessary to protect the child from physical, mental, or emotional harm.


By Joy M. Feinberg and Lori S. Loeb

The potential for psychological and physical damage to children of divorce and the parental relationship looms as a potential harbinger of doom over every divorce case. This specter becomes reality when one parent interferes with the rights of custody or visitation of the other parent by preventing the child from visiting the other parent, or by kidnapping or secreting the child from the parent who has the right to custody or visitation. This article will discuss the visitation and custody interferences that occur during divorce and alert practitioners and judges to the psychological damage to the children. This article will review the alternative remedies available to circumvent custody and visitation interference and address the problems associated with enforcing these remedies. This examination will reveal that the available remedies lose effectiveness proportionate to the severity of the interference with custody and visitation rights. There are numerous types of visitation and custody interferences that courts must address: modest abuses related to timeliness and access for telephone contact and visitation; issues of child protection when allegations of physical and sexual abuse occur, such as eliminating or limiting contact with the other parent; and in the most severe cases, loss of a relationship due to actions characterized as kidnapping. In addition to these described interferences, more subtle actions occur which create problems. Parents involved in serious custody and visitation disputes frequently engage in programming and brainwashing techniques directed at the child to the detriment of the other parent, thereby interfering subtly or overtly with the parent/child relationship.[1]

This behavior is frequently referred to as the Parental Alienation Syndrome. Although such behavior is a common occurrence, what is clear is that a dilemma exists in cases involving brainwashing: risk to the child when a change of custody is imposed for parental alienation syndrome or programming cases may not be in the best interest of the child; [2] yet the court may be powerless to stop the offending contact from occurring.

Programming behaviors range from the simple to the complex. They often begin with ignoring any discussion of the other parent; speaking negatively about the parent in front of the child; criticizing or attacking the parent's lifestyle or character; not informing the other parent of dates for the child's school activities, plays, conferences and sporting events; ignoring the other parent in front of the child; destroying or desecrating photographs of the other parent or refusing to allow the child to have a photograph of the parent in his/her room; speaking to the child about issues that should be first discussed with the other parent; and using the child as a messenger. [3] More severe techniques include attempting to get the child to side with one parent against the other; instilling in the child the belief that the other parent does not genuinely care for the child; and communicating to the child he or she will suffer rejection or loss of love from a parent if the child expresses love or the desire to be with the other parent. The child, either implicitly or explicitly, understands that to be loved by one parent the child must turn against the other parent. [4] The most severe methods of programming occur when the programmer instills distrust, fear or the belief that a parent is unable to properly care for the child by initiating judgmental, opinionated and negative comments or physical inspection and derogatory interrogation once the child returns to the custodial parent. [5] The child then interprets anything associated with the target parent as "wrong" or "unsafe". [6]​

Physical punishment may be added to this psychodramatic interplay if the child fails to comply with the programmer. [7] Any form of programming may be used alone, or in conjunction with the other techniques, including the ultimate detachment -- kidnapping. The programmer may experience a backlash effect if the child is able to realize that the programmer has made specific attempts to intentionally and systematically sever the child's relationship with the target parent. [8] While practitioners are told of such a reaction, it is seldom seen; and when experienced, it comes after years of abuse -- at an untold cost of emotional destruction to the child. Even when practitioners admonish their clients not to engage in such destructive behavior, practitioners frequently lament their clients' failure to follow attorney advice. A child who has not been successfully brainwashed frequently harbors anger and resentment toward both parents. [9] The child expresses anger toward the brainwasher for behavior the child comprehends is destructive to the child's relationship with the target parent and toward the target parent for "giving up" attempts to protect him or her through greater custodial time [10], severing the visitation requirement, or otherwise having the ability to control and prevent the acts of abuse. The child's hope is that the target parent will be strong and rescue the child from the programmer. Surprising to many parents, very often the child does not want the target parent to back off from "rescue" attempts.

Children often use denial as a coping mechanism, and construct images of a fantasy relationship with the "lost" target parent. [11] Children who become estranged from a parent because of residential relocation or kidnapping and are subjected to programming are at the greatest risk. Without residential proximity and significant contact, children only receive input from one parent and are more susceptible to programming without any input or behavior by the target parent to counteract the programmer. [12]

Furthermore, particularly if a child is denied access to the mother figure at various developmental states, the child may be unable to provide necessary attachment, as some evidence points to a preferred attachment figure of most babies to their mothers as opposed to their fathers or substitute caregivers. [13] The motivation for the programmer's actions are numerous. They include (1) self-righteousness, (2) revenge, (3) fear of losing the child, (4) sense of past history of more involvement, (5) proprietary perspective, (6) jealousy, (7) child support, (8) loss of identity, (9) out of sight, out of mind, (10) self-protection, (11) maintaining the marital relationship through conflict, and (12) power, influence, control, and domination. [14] Programming parents show a diminished capacity to parent as a result of their anger, depression, and humiliations. The parents become preoccupied with their own lives and are unable to provide emotional support to their children. [15] Significant behavior problems may result from the parent's brainwashing and inability to effectively parent. Children suffer from a multitude of behavioral maladjustments including anger, loss of impulse control, loss of self-confidence and self-esteem, clinginess, separation anxiety, fears, and phobias, depression and suicidal feelings, sleep disorders, eating disorders, academic problems or radical fluctuations in academics, enuresis, confusion, daydreaming, drug abuse and other self-destructive behaviors, peer group problems, obsessive-compulsive behavior, motor tension, anxiety, psychosomatic disorders, damaged sexual identity, desire to live with neither parent, rescuer role, excessive guilt, and the desire to, or a retreat into fantasy. [16] It is unfortunate that the most devastating effect of divorce and custody disputes are these as described, inflicted upon the innocent victims for whom the parents profess love. Courts in all states have struggled with ways to protect the right of access to each parent and child. They now recognize a variety of causes of action and remedies available to the parent whose custodial or visitation rights have been interfered with by the other parent. [17] The traditional "solutions" range from the mild remedies of specifying exactly the time and place of visitation, awarding make-up visitation, and family therapy or mediation intervention to moderate remedies such as supervised visitation, having a third party responsible for overseeing visitation, loss of visitation, and an award of attorney's fees. [18] More severe remedies include contempt proceedings [19], change of custody [20], and a variety of tort actions designed to redress the problem through coercive financial compensation, rather than modulating behavior through other means. There are also remedies dealing exclusively with the problem of parental kidnapping. [21] The appropriate remedy is directly proportional to the extent of the interference, but unfortunately, even the most severe remedy becomes ineffective when the interference is prolonged and extensive. When a parent's bond with a child is broken, even when the bond is not healthy, the child still suffers all of the ramifications associated with loss: including the feelings of anger, sadness, depression, powerlessness and hurt.

Traditional Remedies

Minor infractions in the custody or visitation arena, such as the failure to return the child on a timely basis, failure to make the child available for visitation in a consistent manner, and limiting telephone contact with the parent are susceptible to traditional remedies. The traditional remedies for visitation or custody interference most frequently involve petitions to the court requesting such relief as: specification of time and place of visitation, make-up visitation time, and family therapy or mediation. [22] These remedies are mild in that there is no finding of contempt or action on this charge, no fines or attorney's fees imposed, and only involve making the existing visitation order more specific than in its previous format. This remedy is designed to rectify the skirmishes occurring over visitation dates and times. When minor infractions escalate to include such action as complete denial of visitation, denial of telephone contact and destruction of the parent-child relationship through severe brainwashing, then additional relief must be afforded. When more severe intervention is required, the parent whose right to custody or visitation is being interfered with may request more significant relief from the Court such as: supervision by a responsible third party, transfers to occur at a neutral location, restrictions or loss of visitation or custody, attorneys' fees for the contemnor's contempt of court, and in some states, withholding of child support as an additional appropriate remedy. [23] However, most courts have held that a non-custodial parent's visitation rights are independent from the duty to make child support payments.[24]


In reality, these traditional remedies are often inadequate and do not serve as a deterrent to custody or visitation interference.[25] Although it may help the aggrieved parent obtain access to the child, it may not circumvent the harm to the child because the parent will continue to engage in brainwashing techniques while reluctantly providing the former spouse with access to the child. Specifically, with regard to civil contempt, the fines may be inadequate to cause any change in active access, let alone changing subversive or subconscious behavior. In addition, the relief is frequently denied because the Judgment or court order inadequately defines the visitation which makes it difficult for the court to find that there was direct wrongdoing by one of the parents. Furthermore, such proceedings are time consuming costly. This action also has a negative impact on the children, [26] when the child may be forced to testify in court, and is almost always subjected to the parents' anger and hostility. [27] If relief is granted, it is difficult to enforce and fails to compensate the non-custodial parent for time loss or emotional distress. Finally, contempt rarely deters future parental interference. [28] A parent who has engaged in parental kidnapping may be subject to criminal sanctions which can include restitution for costs incurred, [29] and in severe cases, the aggrieved party may request a change of custody as a remedy to visitation denial.[30] Courts view change of custody as an extreme remedy which is rarely warranted in denial of visitation cases. The courts instead have determined that willful interference with court ordered visitation cannot alone be the basis for a change of custody; instead courts will evaluate the appropriateness of custody modification based upon the best interests of the child. [31] They most frequently prefer to maintain the status quo and leave sole custody with the present custodial parent. [32] Although these cases are difficult on both the parent and child, change of custody may be the only real counteraction to severe or complete denial of one parent's access to the child and obstruction of the parent/child relationship.

Tort Actions

Severe psychological or physical interference in the parenting relationship demands extreme remedies. Financial coercion is used to deter kidnapping, repay expenses and compensate for a loss that may never be truly rectified. The courts in many jurisdictions have wrestled with the question of recognition of a specific tort of interference with custody or visitation rights, [33] or reliance on traditional torts of emotional distress, false imprisonment and/or the like. Those jurisdictions that have recognized the specific tort of custodial interference have determined that as with any tort, the petitioner must prove the elements of a tort. First the parent suing for custodial interference must possess a superior custody right to the other parent. [34] This paradox often defeats the aggrieved parent's rights, as a third party will not be held liable for conspiring to interfere with a custodial relationship where the parent had joint legal custody, [35] thereby eliminating the ability to prove the first element of the tort. Second, the interfering or abducting parent must be proven to have intentionally interfered with the other parent's right to custody of the child. [36] Third, damages must be demonstrated and can include any emotional or physical injury to the custodial parent; [37] the loss of society and companionship of their minor child; [38] expenses of locating and regaining custody of the child; [39] and the injured parent is entitled to recover the value of the services which would have been rendered by the child. [40] (This last concept is often outdated in modern society where children rarely apprentice in the parental workplace, forum, etc.) Damages should also be awarded for the cost of the child's medical and therapeutic care and treatment to obtain maximum recovery from the traumatic separation and other events endured during the secretion and separation. [41] Finally, punitive damages should be awarded when, in kidnapping cases, the abducting parent acted with a culpable state of mind and his/her acts rose to the level of malicious, outrageous, or wanton misconduct. [42] Although many jurisdictions have recognized the tort for intentional interference with custodial rights, several courts have refused to recognize the tort due to public policy reasons. [43] The court's primary concern was that recognition of the tort would not be in the child's best interest because the child may be forced to testify against a parent he or she loves. These courts further determined that creating a new tort would provide an additional weapon to escalate intra-family hostility and would place innocent children in the middle of a vigorous lawsuit between their parents and potentially grandparents or other relatives. In effect, there would be a re-litigation of the original custody decision. [44] In non-custodial complainant cases, the court will not recognize an action for intentional interference with visitation. [45] However, a number of jurisdictions have upheld a cause of action brought by a non-custodial parent for interference with visitation rights under the theory of intentional infliction of mental distress, [46] and at least one court has recognized the tort of "interference with visitation" without resorting to the more commonly accepted "mental distress" theory. [47] In such causes of actions, the courts have allowed both compensatory and punitive damages.[48] However, the tort of intentional infliction of emotional distress may be found inapplicable as against public policy for the deprivation of visitation rights by a custodial parent. Proper remedies may be limited to contempt, enforcement of visitation provisions, and possible change of custody when the actions are severe and outrageous conduct such as the unilateral separation of a child from his or her parent. [49] Strong arguments exist for denying recovery for damages resulting from intentional interference with visitation. A dissenting opinion in an Iowa Supreme Court decision argues that allowing monetary damages for interference with custody will injure the child because the damage award comes either directly or indirectly out of funds used to support the child. [50] The non-custodial parent may be seeking a means of recovering past due alimony or child support without genuine concern for maintaining contact with the child. [51] The United States Court of Appeals for the Second Circuit recently held that whether or not the tort of visitation interference would be recognized should be left to the state court for its determination in light of the domestic relations exception to federal jurisdiction. The court also stated that the validity of the tort should be based on the facts of each particular case. [52] Therefore, whether the tort will be recognized will vary from state to state depending on the facts of the case, particularly, the severity of the interference.

Parental Kidnapping Remedies

A parent who has lost a child through kidnapping suffers tremendously from its effects. It is particularly traumatic when the child is secreted in another country. In response to the problem of international kidnapping, an increasing number of countries have become part of an international treaty known as the Hague Convention on Civil Aspects of International Child Abduction providing for the return of a child wrongfully removed from one country to another. [53] The intent of this treaty is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." [54] Under this treaty, a parent challenging the removal of a child from another country to the United States has the burden of showing by a preponderance of the evidence that the removal was wrongful. [55] The burden then shifts to the parent who currently has possession of the child to show that there would be a risk that a return of the child to the other parent would expose the child to physical or psychological harm; that returning the child would be a violation of human rights principles and fundamental freedoms; that the action was commenced more than one year after the abduction; or that the other parent was not actually exercising custody at the time of the child's removal or had consented to, or acquiesced in, the child's removal. [56]

The Hague Convention provides for the immediate return of the child when the child has been found to have been wrongfully removed and at the date of the commencement of the proceedings a period of less than a year has elapsed since the removal. [57] If a period of one year has elapsed, the child is returned unless it is shown by the opponent that the child is settled in a new environment. [58] The Hague Convention also provides for payment by the parent who has wrongfully removed the child for expenses incurred in implementing the return of the child, including travel, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child. [59].

Additionally, the federal legislature enacted the Parental Kidnapping Prevention Act of 1980 (PKPA) in response to interstate parental kidnapping and child custody litigation, in large part as a result of the line of cases in which the United States Supreme Court declined to rule that child custody determinations are entitled to full, faith and credit by sister state courts pursuant to Article IV, Sec. 1 of the United States Constitution. [60] A major purpose of the PKPA was to ensure that a state would enforce the decrees validly made under the UCCJA, regardless of whether or not that state had adopted the UCCJA. (All states have now adopted the UCCJA.) [61] The PKPA basically provides that once a state court properly exercises jurisdiction, no other state may exercise concurrent jurisdiction over a child custody case, and all other states must afford full, faith and credit to the first state's custody decree, unless the first state loses jurisdiction for some reason enumerated in the Act or declines to exercise continuing jurisdiction over the case. [62] The PKPA also created an explicit preference for jurisdiction in the home state of the child in an attempt to rectify one of the statutory weaknesses of the UCCJA. [63] Under the PKPA, a state cannot assert significant contacts jurisdiction unless there is no state that meets the home state requirement. [64] The PKPA enforces the UCCJA's requirement that only one state at a time can validly exercise jurisdiction over a custody determination. [65] Furthermore, where the PKPA conflicts with a state child custody statute, many courts have held that the PKPA controls because of federal preemption under the Supremacy Clause. [66] Despite these available remedies, however, the question remains as to whether they serve as a deterrent and whether they adequately protect the interests of the child. Even when criminal proceedings against an abducting parent have been initiated, such action should not be viewed as vindicating, securing or enforcing rights to custody. The aggrieved parent should take action in state court to obtain, modify, or enforce a custody or visitation order. [67] The most tragic cases, of course, exist when the child can not be located or is discovered in a foreign country that is not a party to the Hague Convention.

The Constitutional Protection Available for Custody/Visitation Intervention

There are some instances when the parent is denied access to the child by a government agency when the parent and child are forced to enter a witness protection program not as a result of any intentional wrongdoing by the parent. In these instances, the traditional remedies, tort remedies, and kidnapping remedies are inapplicable. In these line of cases involving witness protection programs, the due process clause of the Fifth Amendment to the Constitution has been used as the basis for a cause of action against the government. [68] The argument is made in these cases that a parent's relationship with his/her child is a constitutionally protected right, although not expressly set forth in the constitution, drawn from the "liberty" protected by the Due Process Clause of the Fifth Amendment. [69] In order to succeed under this theory, the defendant's wrongful conduct must be intentional and the plaintiff must suffer compensable damages. [70] The courts have supported the rights of the parent to maintain a relationship with his/her child and have held that the government can not infringe upon these rights without: affording the parent requisite procedural protections; making a particularized finding and showing of a legitimate interest to justify the infringement; and availing itself of equally effective alternate solutions to the problem before them that would have been less restrictive of the parents' rights. [71] These cases undeniably support the parents' rights but are in contrast to intentional types of interferences which result from a parent's conduct. These cases suggest that rights are not absolute in that compelling public necessity can justify terminating parental contact if proper procedures are followed. In these cases, the court must weigh the parental rights versus the danger to both the other parent and the child. [72]


There are clear remedies which are now recognized in an effort to alleviate the custody or visitation intervention problems that occur when parents are undergoing a dissolution of marriage. The most recent development has been the integration of tort law into domestic relations actions through the recognition of domestic torts. Courts have acknowledged the effects on children and spouses when there is hostility and anger which results in brainwashing and visitation or custody interference. Judges play a crucial role in these cases and it is important that they have an understanding of the psychological impact of the divorce process on the parents and children. In particular, they should ascertain the level of parental alienation: whether it is severe, moderate, or mild, in order to make an appropriate ruling. [73] What is clear, unfortunately, is that the remedies are not effective deterrents to the programming and brainwashing in the severe cases when the parental alienation cannot be undone.

1. Stanley S. Clawar & Brynne V. Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children,15 (1991).

2. Cheri L. Wood, Note, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy. L.A. L. Rev. 1367, 1382 (1994).

3. Clawar & Rivlin, supra note 1, at 16 -24.

4. Id. at 23 -26.

5. Id. at 31.

6. Id.

7. Id. at 36.

8. Clawar & Rivlin, supra note 1, at 36.

9. Id. at 111.

1. Id. at 112.

11. Id. at 113.

12. Id. at 115.

13. Arlene Browand Huber, Children at Risk in the Politics of Child Custody Suits: Acknowledging Their Needs for Nurture, 32 U. Louisville J. Fam. L. 33, 53 (1993).

14. Clawar & Rivlin, supra, note 1 at 38.

15. Judith S. Wallerstein, The Child in the Divorcing Family, 7 (1980).

16. Clawar & Rivlin, supra note 1, at 129.

17. Larson v. Dunn, 460 N.W.2d 39, 44 (Minn. 1990).

18. In re Marriage of Kramer, 570 N.E.2d 422, 431 (Ill. App. Ct. 1991);Ingerwerson v. Woeckener, 490 N.E.2d 1008, 1010 (Ill. App. Ct. 1986).

19. Ford v. Ford, 700 P.2d 65 (Idaho 1985); McGrady v. Rosenbaum, 308 N.Y.S.2d 181, 188 (N.Y. Sup. Ct. 1970), aff'd, 37 A.2d 917 (N.Y. App. Div. 1970).

20. Rosenberg v. Rosenberg, 504 A.2d 350 (Pa. Super. Ct. 1986); Marriage of Ciganovich, 132 Cal. Rptr. 261 (Cal Ct. App. 1975).

21. See Juliet A. Cox, Note, Judicial Wandering Through A Legislative Maze: Application of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act to Child Custody Determinations, 58 Mo. L. Rev. 427 (1993).

22. See Sue T. Bentch, Comment, Court-Sponsored Custody Mediation to Prevent Parental Kidnapping: A Disarmament Proposal, 18 St. Mary's L.J. 361 (1986).

23. Lawrence A. Goldman, Tortious Interference With Visitation Rights: A New and Important Remedy for Non-Custodial Parents, 20 J. Marshall L. Rev. 307, 313 (1986).

24. Id.

25. Id. at 315.

26. Id. at 311.

27. Larson v. Dunn, 460 N.W.2d 39, 45 (Minn. 1990).

28. Id. at 311.

29. See, e.g., Vanness v. State, 605 N.E.2d 277 (Ind. Ct. App. 1992) (upholding father's felony conviction for interference with custody for removing his daughter from the state in violation of custody order).

30. English v. English, 469 A.2d 270 (Pa. Super. Ct. 1983), Pamela J.K. v. Roger D.J., 419 A.2d 1301 (Pa. Super. Ct. 1980), Ford v. Ford, 700 P.2d 65 (Idaho 1985), Entwistle v. Entwistle, 402 N.Y.S.2d 213 (N.Y. App. Div. 1978).

31. Rosenberg v. Rosenberg, 504 A.2d 350, 353 (Pa.Super. Ct. 1986); English v. English, 419 A.2d at 1307. See also Schmidt v.Schmidt, 591 S.W.2d 260, 262 (Mo. App. 1979), Spenser v. Spenser, 488 N.Y.S.2d 565 (N.Y. Fam. Ct. 1985); Clark v. Clark, 805 S.W.2d 290 (Mo. App. 1991); Snarski v. Krincek, 538 A.2d1348 (Pa. Super. Ct. 1988) (visitation interference was a factor in modification of custody proceeding).

32. Goldman, supra note 23, at 312-313.

33. See Richard A. Campbell, Comment, The Tort of Custodial Interference -- Toward a More Complete Remedy to Parental Kidnappings, 1983 U. Ill. L. Rev. 229; Joseph R. Hillibrand, Note, Parental Kidnapping and the Tort of Custodial Interference: Not in a Child's Best Interests, 25 Ind. L. Rev. 893 (1991).

34. Kajtazi v. Kajtazi, 488 F. Supp. 15, 18 (E.D.N.Y. 1978); Abdul-Rahman Omar Adra v. Clift, 195 F. Supp. 857, 862-63 (D. Md. 1961); Politte v. Politte, 727 S.W.2d 198, 200 (Mo. App.1987), Spencer v. Terebelo, 373 So. 2d 200, 202 (La. App. 1979); Restatement (Second) of Torts s 700, cmt. c (1976).

35. Marshak v. Marshak, 628 A.2d 964, 969 (Conn.1993).

36. Fenslage v. Dawkins, 629 F.2d 1107, 1108 (5th Cir.1980); Kajtazi at 17.

37. Loyd v. Loeffler, 518 F. Supp. 720, 725 (E.D. Wisc., 1981); 488 F. Supp. at 19; see also C. David Bargamean, Note, Intentional Infliction of Emotional Distress in the Child Custody Context: Proposed Guidelines, 36 Wayne L. Rev. 125 (1989).

38. 488 F. Supp. at 19.

39. 518 F. Supp. at 720.

40. Fenslage v. Dawkins, 629 F.2d at 1109.

41. Id.

42. 518 F. Supp. at 493-4; 488 F. Supp. at 20; Sanford N. Katz, Legal Remedies for Child Snatching, 15 Fam.L.Q. 103, 117 (1981-2); Note, The Tort of Custodial Interference - Toward a More Complete Remedy to Parental Kidnappings, U. Ill. Law Rev. 256 (1983).

43. Zaharias v. Gammill, 844 P.2d 137, 139 (Okla. 1992); Larson v. Dunn, 460 N.W.2d 39, 45 (Minn. App. 1990). However, these decisions did acknowledge that there may be a cause of action for intentional infliction of emotional distress.

44. 460 N.W.2d at 45-46; 844 P.2d at 141.

45. Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994); Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987); Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985).

46. Bhama v. Bhama, 425 N.W.2d 733 (Mich. Ct. App. 1988); Pankratz v. Willis, 744 P.2d 1182 (Ariz. Ct. App. 1987); Sheltra v. Smith, 392 A.2d 431 (Vt. 1978).

47. Ruffalo v. United States, 590 F.Supp. 706 (W.D. Mo., 1984).

48. Rafferty v. Scott, 756 F.2d 335 (4th Cir. 1985).

49. Pankratz v. Willis, 744 P.2d 1182, 1189 (Ariz. Ct. App.1987), citing Kajtazi v. Kajtazi, 488 F. Supp. 1520 (E.D.N.Y. 1978); Rafferty v. Scott, 756 F.2d 335 (4th Cir.1985); Sheltra v. Smith, 392 A.2d 431 (Vt. 1978); Plante v. Engel, 469 A.2d 1299 (N.H. 1983); Eller v. Eller, 524 N.Y.S.2d 93 (N.Y. App. Div. 1988); McGrady v. McGrady, 308 N.Y.S.2d 181, 182 (N.Y. Sup. Ct. 1970).

50. Wood v. Wood, 338 N.W.2d 123, 127-30 (Iowa 1983) (Wolle, J. dissenting).

51. Eve Kahao Gonzalez, Note, Intentional Interference with Visitation Rights: Is This a Tort?: Owens v. Owens, 47 Louisiana L. Rev. 217 (Sept. 1985); 338 N.W.2d at 127-30 (Wolle, J. dissenting).

52. Minot v. Eckardt-Minot, 13 F.3d 590, 594 (2d. Cir.1994).

53. In 1986 the United States ratified the Hague Convention on the Civil Aspects of International Child Abduction at the Hague Conference on Private International Law. Fourteenth Session, October 25, 1980 (51 Fed Reg. 10,498 (1980)). Legislation was enacted shortly thereafter as the International Child Abduction Act, Pub. L. No. 100 -300 s 1, 102 Stat. 437 (1988) (codified at 42 U.S.C. ss 11601-11610 (1988)). See also Philip Schwartz, Note, Getting a Child Back, How the State Department Can Help, Fam. Advoc., Spring, 1993.

54. Hague Convention, supra note 53.

55. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993).

56. Hague Convention, supra note 53, Articles 13 & 20.

57. Id., Article 12.

58. Id.

59. Id., Article 26.

60. 18 U.S.C. s 1738A (1985).

61. Linda M. Demeris, Note, Interstate Child Custody and the Parental Kidnapping Prevention Act: The Continuing Search for a National Standard, 45 Hastings L.J. 1329, 1336 (1994).

62. Id.

63. Id. at 1336.

64. Id.

65. Id.

66. Id. at 1340, see e.g., Alvarez v. Bressett, 433, 434 (Ala.Civ. App. 1991); Shute v. Shute, 607 A.2d 890, 893 (Vt. 1992).

67. 1 Lenore Kramer, Legal Rights of Children, 244-45 (2d ed. 1994).

68. Ruffalo v. Civiletti, 702 F.2d 710 (8th Cir. 1983).

69. Id.

70. Id. at 709.

71. Franz v. United States, 707 F.2d 582, 586 (D.C. Cir.1983).

72. Id.; Ruffalo v. Civiletti, 702 F.2d 710 (8th Cir. 1983).

73. Richard A. Gardner, Family Evaluation in Child Custody Mediation, Arbitration, and Litigation, 496 (1989).



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