There is no doubt that in the difficult context of child custody battles, parents occasionally resort to outrageous acts of interpersonal sabotage.[i] Every experienced family court judge, battle worn child custody practitioner, and family therapist can attest to dozens of examples of parental manipulation. Casebooks are filled with tales of vengeful and deceptive behavior by divorcing spouses, in which the children are used as pawns in their battles.”[ii] In this book, we use parental alienation (PA) for the condition of children who have been alienated from a previously beloved parent; we use alienating behaviors (ABs) for the manipulative and alienating activities of parents, as well as the ill-considered actions of those who assist them—be it witting or unwitting.
One behavior, visitation interference, occurs when the alienating parent violates parenting plans and/or takes advantage of ambiguities in the plan to maximize time with the child. The TP has fewer opportunities to counter the badmouthing message, leading to the attenuation of the parent-child relationship. The child acclimates to spending less time with target parent and the court might even reward the AP by instituting the new “status quo” as the permanent schedule.
In the following cases, the target parents sought unique remedies to interference with custody.
Wolf v. Wolf, Iowa, 2005
The Iowa matter of Wolf v. Wolf[iii] contains all-too-familiar allegations of a never-ending custody battle. When the parties divorced in 1990 (when the child was approximately five years old), primary physical care was awarded to Mother; in 1993, this was switched to Father; and in 1998, a district court switched it back to Mother, but on appeal the appellate court reversed and gave Child back to Father.[iv] By this last decision, Child was living in Arizona with Mother, with whom she remained for the next 11 months, despite the clear custody order.
Father obtained a writ of habeas corpus in Iowa, retrieved Child from Arizona and she remained with him in Iowa for about 1½ months. In October 2000, at the age of 15, Child took a flight back to Arizona and Mother began unsuccessful court proceedings in Arizona and Iowa, the last of which had the court issuing an order that all must remain in Iowa during the pendency of its proceedings.[v] While a show cause order was pending regarding Mother’s earlier failures to return daughter, Mother and Child fled once again to Arizona.[vi]
Father filed a civil suit in Iowa for interference with custody based on the Iowa decision Wood v. Wood, 338 N.W.2d 123 (Iowa 1983) and the Restatement (Second) of Torts § 700 (1977), and the trial court denied Mother’s motion to dismiss for failure to state a claim.[vii] The appellate court affirmed the awards to the Father of compensatory damages and punitive damages.[viii]
Wyatt v. McDermott, Virginia, 2012
The plaintiff-father in Wyatt v. McDermott[ix] had his custodial rights interfered with from before the child was born. Father and Mother were unmarried, and Mother was apparently under the control of her parents, who pushed for her to give the child up for adoption.[x] Through much of her pregnancy, Father attended Mother’s doctor’s appointments with her, and the two made plans to raise the child together.[xi]
At the same time, Mother was working with an attorney retained by her parents to facilitate an adoption and she signed forms, agreements, and affidavits, often intentionally omitting information about Father. All the while, she continued to deceive the father that she planned to raise the child with him.[xii] She hid her labor and the birth from him (it was two weeks early) and, two days after the birth, she relinquished her rights and custody of the child was transferred to the adoptive parents, via an adoption agency and its attorneys, who resided in another state.[xiii]
Six days after the transfer, and after he had learned of the birth, Father initiated proceedings for custody, and while Virginia (his residence) courts awarded him custody, Utah (the residence of the adoptive parents) awarded custody to the adoptive parents.[xiv]
Father then filed suit in federal district court in Virginia against the attorney for the parents, the attorney for the agency, the adoption agency, an employee of the adoption agency, and the adoptive parents seeking “compensatory and punitive damages for the unauthorized adoption as well as a declaratory judgment under the Parental Kidnapping Prevention Act” in addition to claims of tortious interference with parental rights.[xv]
The defendants filed a motion to dismiss the tortious interference claim, and the district court, rather than ruling, certified the question of whether it existed, and if so what were its elements and burden of proof, to the Virginia Supreme Court. The state court held “a parent has a cause of action against third parties who seek to interfere with this right,” and its elements 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.[xvi]
[i] Anita Vestal, Mediation and Parental Alienation Syndrome: Considerations for an Intervention Model, 37 Fam. & Conciliation Cts. Rev. 487, 487 (1999).
[ii] Solangel Maldonado, Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce, 43 Wake Forest L. Rev. 441, 449-50 (2008).
[iii] Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005). See also Lansky by Brill v. Lansky, 449 N.W.2d 367 (Iowa 1989) (recognizing tortious interference with custody as a viable cause of action).
[iv] Wolf, 690 N.W.2d at 890.
[v] Id.
[vi] Id. at 891.
[vii] Id.
[viii] Id. at 893-894.
[ix] Wyatt v. McDermott, 725 S.E.2d 555 (Va. 2012).
[x] Id. at 556.
[xi] Id.
[xii] Id. at 557.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id. at 558, 562.