Did You Know? Is interference with parental rights recognized as a
tort in Virginia? — A clarification
We are publishing this
revised version of last week’s “Did You Know?” email to clarify that the
background information in our earlier email consists of allegations, not
findings of fact by the Virginia Supreme Court. The factual allegations in the
underlying complaint are set out in the Court’s opinion in order to frame an
answer to the certified question. This case is still pending in U.S. District
Court for the Eastern District of Virginia. The allegations are accepted as
true in the opinion, because the certified questions of law arose out of a
motion to dismiss for failure to state a claim under FRCP 12(b)(6).
In Wyatt v. McDermott, a case published April 20, the Virginia Supreme Court recognized for the first time the tort of interference with parental rights, in the context of an adoption. In the U.S. District Court suit, the birth father alleges that he was unaware of plans for adoption made by the child’s mother. The Virginia Supreme Court decision answered two questions certified to it by the U.S. District Court for the Eastern District of Virginia:
1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action.
2. If so, what are the elements of the cause of action?
While there is no statutory basis in Virginia for the tort of interference with parental rights, the Virginia Supreme Court evaluated the common law basis for the tort, finding that this cause of action was valid both at common law and today because “rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded the parent-child relationship.” Although wrongful interference with custodial rights is codified in Virginia in § 18.2-49.1 as a criminal offense, the statute does not provide any civil remedies.
The elements of the tort are: (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.
The burden of proof is by preponderance of the evidence. The Court also discussed the availability of potential affirmative defenses by the defendants in these cases if there is a good faith argument that the child’s physical, mental, or emotional health is in jeopardy.
The information is derived from Virginia CLE® editorial staff research, retrieved April 27, 2012 from http://www.magnetmail.net/actions/email_web_version.cfm?recipient_id=647096301&message_id=1923772&user_id=VACLE&group_id=822678&jobid=10032192
In Wyatt v. McDermott, a case published April 20, the Virginia Supreme Court recognized for the first time the tort of interference with parental rights, in the context of an adoption. In the U.S. District Court suit, the birth father alleges that he was unaware of plans for adoption made by the child’s mother. The Virginia Supreme Court decision answered two questions certified to it by the U.S. District Court for the Eastern District of Virginia:
1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action.
2. If so, what are the elements of the cause of action?
While there is no statutory basis in Virginia for the tort of interference with parental rights, the Virginia Supreme Court evaluated the common law basis for the tort, finding that this cause of action was valid both at common law and today because “rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded the parent-child relationship.” Although wrongful interference with custodial rights is codified in Virginia in § 18.2-49.1 as a criminal offense, the statute does not provide any civil remedies.
The elements of the tort are: (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.
The burden of proof is by preponderance of the evidence. The Court also discussed the availability of potential affirmative defenses by the defendants in these cases if there is a good faith argument that the child’s physical, mental, or emotional health is in jeopardy.
The information is derived from Virginia CLE® editorial staff research, retrieved April 27, 2012 from http://www.magnetmail.net/actions/email_web_version.cfm?recipient_id=647096301&message_id=1923772&user_id=VACLE&group_id=822678&jobid=10032192
