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Tortious Interference with Parental Rights

By January 29, 2019June 11th, 2019Uncategorized
Devon Slovensky and Bethny Barrett

Tortious inteference with parental rights family law custody virginia

Tortious Interference with Parental Rights

In 2012, the Supreme Court of Virginia ruled, in Wyatt v. McDermott,[1] that Virginia recognizes lawsuits for intefering with parental rights (TIPR). Because of the relatively recent ruling, Virginia courts have issued very few decisions on this cause of action. Below, the background of the law, the potential grounds for lawsuits, and the defenses against complaints are explained.

Helpful Definitions

The Wyatt case uses a good amount of legal jargon. However, the concepts are easily understandable to non-lawyers. To that end, here are some common words that will help you unpack the issue of TIPR.

Tortious Conduct:

  • Legal Definition: not only an act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as creating an unreasonable risk of invasion of such an interest, but also conduct which is carried on at the risk that the actor shall be subject to liability for harm caused thereby, although no such harm is intended and the harm cannot be prevented by any precautions or care which it is practicable to require[2]
  • Common Sense Definition: A tort is an intentional or negligent act that causes harm to another person. There are different names for different tortious acts, e.g. battery, assault, defamation, etc. The tort at issue in this article is called the tortious interference of parental rights.

Cause of Action:

  • Legal Definition: the fact or facts which establish or give rise to a right of action, in other words, give to a person a right to judicial relief[3]
  • Common Sense Definition: The cause of action is whatever act the person that files a lawsuit alleges that the other party did. In other words, a plaintiff brings a cause of action to the court by stating facts that show the defendant committed a certain act, in this case a tortious act.

Common Law:

  • Legal Definition: In its broadest aspect, the common law may be said to be the general Anglo-American system of legal concepts and the traditional technique which forms the basis of the law of the states which have adopted it.[4]
  • Common Sense Definition: Common law is the law used in England prior to the United States’ establishment, which formed the basis for much of American judicial law. Virginia is a common law state, so the State courts look to historical law to make decisions.

Wyatt v. McDermott[5]

In this case, another court asked the Virginia Supreme Court to decide whether there is a cause of action for TIPR, and, if so, to define the elements needed to prove the cause of action. Briefly put, the facts of the case concern an unmarried couple who conceived a child together. The mother, in conjunction with her lawyers and an adoption agency, secretly arranged for the child to be adopted by out-of-state parents. They also intentionally gave the biological father false information about the child’s birth and about his legal rights as a parent. Because he lost the right to parent the child, the father brought a claim of TIPR, which had not yet been recognized in Virginia.

In order to determine if this cause of action existed in Virginia, the Court looked at common law. In the past, fathers could sue for the loss of service from their heirs. While the historical cause of action contained antiquated notions of gender and familial connections, the values that supported it are the same today. The United States Supreme Court has emphasized the importance of the right to parent.[6] Because Virginia is bound by common law and U.S. Supreme Court constitutional decisions, the Court found that claims of TIPR protect fundamental values and should be permitted within Virginia.

How to Prove Tortious Interference with Parental Rights

The Court stated that a plaintiff must prove the following elements to show that TIPR has occurred:

(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.[7]

Here are some points worth noting about the above elements:

  • Your attorney can assist you in determining your right to parent the child, especially if you have any doubts about your legal relationship with the child.
  • The other parent of the child may be a party outside of your relationship with the child. However, the Court reserved a caveat to bringing the claim against other parents. One parent may not bring a claim against another parent that has equal or substantially equal rights to establish parental rights to the parents. Your attorney can assist you with this fact-specific exception.
  • You may ask for compensatory damages. These damages make up for any money you have lost by trying to reestablish your parental rights. You may also request punitive damages, which punish the other parties by making them pay more money to you.
  • IMPORTANT: You cannot request injunctive or other equitable remedies under this cause of action. This means that the court cannot grant custody orders or undo the actions that caused the removal or harm of your parental rights.

Defenses—what can you argue if you have been accused of tortious interference with parental rights?

The Court in Wyatt gives two defenses that a person may raise if they have been accused of TIPR. The first, as mentioned above, is that the parties have equal or substantially equal rights to establish or maintain a parental relationship with the child. Second, “a reasonable, good faith belief that interference with the parent’s parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm” is a defense.[8]

If you believe you have a claim for tortious interference with parental rights or that you need to defend against such a claim, contact our office for more information.

This article was written by third-year law student, Bethny Barrett of Washington and Lee University School of Law.

[1] 725 S.E.2d 555 (Va. 2012).

[2] Restat 2d of Torts, § 6

[3] Ballentine’s Law Dictionary (3rd ed.)

[4] Id.

[5] Supra note 1

[6] See Troxel v. Granville, 530 U.S. 57 (2000).

[7] Wyatt v. McDermott, quoting Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 1998).

[8] Id.