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Though it does not happen often, sometimes a parent encounters a situation in which the other parent or a third party has wrongfully withheld a child from that parent for an extended period or has alienated a child from that parent to the point that reunification may not be possible or take a long time. In such case, a parent’s remedies in a custody case are limited. Custody is based solely on the best interests of the child. Even if the withholding or alienating parent acted wrongfully, the court cannot punish them by awarding custody of the child to the innocent parent if it finds that would not be in the best interest of the child.

          The innocent parent does, however, have a civil remedy. Most states in the U.S. recognize a civil action for “intentional interference with custody” or “tortious custodial interference.”

          This tort action has its roots in English common law. In the 1600’s and 1700’s, a father had a legal cause of action if his son was “abducted” (sometimes by an employer) because the father had “property” rights over his children. This was known as an action of trespass per quod servitium amisit ­– meaning, essentially, that if the child was old enough to perform work or “service,” and the abduction led to the loss of such “service,” the father could sue for monetary damages for that loss.

          The torts of “abduction” and “harboring” were recognized in several early American colonies, including Georgia, New Hampshire, New Jersey, and Pennsylvania. The tort of “harboring” occurred when a child was induced or encouraged to, without their parents’ consent, to remain away from the parent.

          In 1938, the American Law Institute’s first Restatement of Torts (which is a document used as guidance by American courts, especially for cases involving an area of law not previously decided by that court) included a legal cause of action for the abduction of a child. When the new Restatements were published between 1965 and 1979, the authors modernized the legal claim. Now, the Restatement (Second) of Torts, section 700, provides, “One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legal entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.”

     Since then, several courts have found that this cause of action exists in their state. As outlined in the West Virginia case Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), the elements of a claim of tortious custodial interference are:

  1. That the complaining parent has a right to a parental/custodial relationship with their minor child;
  2. That a party outside of that parent-child relationship has intentionally interfered with the complaining parent’s relationship with their child by removing or detaining the child from the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising their rights to the child;
  3. That the party’s intentional interference caused harm to the complaining parent’s relationship with their child; and
  4. That the complaining parent suffered damages because of the interference.

Courts have also, over the years, modified the old English common law requirement that damages for the cause of action be calculated based on “loss of services.” In Stone v. Wall, 734 So.2d 1038 (Fla. 1999), the Florida Supreme Court stated that recovery for this tort is no longer based on loss of services, both the mother and father may bring a lawsuit (as opposed to common law, where only the father could bring suit), and damages were based on the “sanctity of the parent-child relationship.”

Though not every state recognizes this cause of action, there is support for doing so based on previous U.S. Supreme Court decisions. For example, in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), the Supreme Court stated, “We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.” In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) – perhaps the most important case involving parental rights – the Supreme Court said that a parent’s right to participate in the care, custody, and control of their own child is “perhaps the oldest of the fundamental liberty interests recognized by this Court,” and that it is protected by the Due Process Clause of the 14th Amendment to the Constitution.

Courts around the country have, thus, used this reasoning to justify a legal cause of action against anyone who interferes with this fundamental right, even if it is another person as opposed to the government.

A civil lawsuit cannot give a parent time back with their child or repair their relationship with their child that has been damaged by another person. It can, however, provide some remedy and perhaps a small amount of closure for a parent who has been wronged and provide for loss of companionship, mental anguish, and expenses that parent has incurred (such as custody proceedings) to try to repair their relationship with the child.

Most courts which have issued decisions on this subject have found that some sort of physical removal of a child is necessary to file such a lawsuit. But what happens if a child is alienated from a parent only psychologically, but not physically?

There is generally no tort claim for “alienation of affection” of a child. In fact, the Restatement (Second) of Torts, section 699 states, “One who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child’s parent.” Courts have, however, recognized a cause of action for intentional infliction of emotional distress instead of “alienation of affection.”

For example, in Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985), a mother fled the state and hid a child away from the father for many years. When the father located her and the child, the child did not want to see him, and reunification therapy was not very successful. The appellate court found that even though there was no cause of action for alienation of affection, the facts alleged in the father’s civil lawsuit were enough for intentional infliction of emotional distress.

In Nevada, the elements of a claim for intentional infliction of emotional distress are:

  1. That the defendant’s conduct was extreme or outrageous;
  2. That the defendant either intended or recklessly disregarded the causing of emotional distress;
  3. That the plaintiff actually suffered severe or extreme emotional distress; and
  4. That the defendant’s conduct actually or proximately caused the distress.

Though there is a stereotype that intentional infliction of emotional distress is a sort of “afterthought” to most lawsuits, often being included in addition to other claims, it could, theoretically, provide some compensation for wrongdoing by an alienating parent that a custody court would not be able to award.

If you have experienced parental alienation, or your child has been wrongfully withheld from you, you should consult with an experienced child custody attorney to discuss your best course of action and whether that action may involve a civil lawsuit like the ones discussed above.

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