The Lawletter Vol 37 No 3
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.