I was cleaning out some of my files and ran across this article that I thought was interesting, though maybe a little "stale" in light of the dates of some of the case law cited. Regardless of the "age", I thought it might provide ideas and options for those trying to enforce their Parenting Time.
I found the article on the "National Congress for Fathers & Children" website (http://www.ncfc.net/) which reprinted it from "NCM* NETWORK" issue 1989-1" so I am not sure who to "credit" as "author".
* - National Congress for Men
Tort Remedies For Interference With Parenting Time (< parenting time >)
Courts generally grant non-custodial parents reasonable Parenting Time rights so that they can maintain and develop their relationship with their children after the marriage has dissolved. The custodial parent, however, may interfere with the Parenting Time forcing the non-custodial parent to seek alternative ways to maintain the parent-child relationship. The traditional remedies are to seek a contempt order, modification of the custody decree, or withhold support payments. The new tort remedies are for intentional infliction of emotional distress and interference with Parenting Time.
A. Traditional Remedies
Traditionally, the following three options existed for the non-custodial parent whose Parenting Time rights have been violated: 1) institute an action for civil contempt; 2) seek a modification of the custody decree; 3) withhold child support. These options have proven inadequate for compelling the custodial parent to comply with a court-decreed Parenting Time schedule.
1. Contempt Order
The most familiar remedy used to prevent a violation of Parenting Time rights is to institute a contempt action to compel the parent acting wrongfully to comply with the court ordered Parenting Time schedule. While this is a relatively simple procedure, it does not always prove to be an effective deterrent of future violations and also will not compensate a parent for the injury already realized from the deprivation of their Parenting Time with the child.
2. Modification of Custody Decree
Another remedy that a non-custodial parent may use to prevent interference with child Parenting Time is to ask the court to modify the custody decree and grant them joint or sole custody of the children. Courts have been reluctant to modify custody decrees reasoning that the modification would disrupt the children’s lives and in effect punish them for the custodial parent’s wrongful conduct.
3. Withholding Child Support
When a custodial parent continuously prevents the non-custodial parent from exercising his Parenting Time rights, the Court may allow the non-custodial parent to withhold child support payments as a means of compelling the custodial parent to cooperate with the Parenting Time schedule. This is not the optimal remedy, however, and courts are reluctant to grant this remedy. The primary rationale for this reluctance is the existence of a potential catch-22 situation: child support is withheld because of Parenting Time violations, and Parenting Time is violated because child support is being withheld. The ultimate loser in this situation is the child(ren), therefore courts generally hold that Parenting Time rights are independent of child support payments.
B. Tort Remedies
The traditional alternatives available have been ineffective in preventing the recurrence of Parenting Time violations. Non-custodial parents therefore have turned tort theories to recover damages from the custodial parent and to accomplish uninterrupted Parenting Time. The current trend suggests that the threat of financial liability will discourage a custodial parent from interfering with Parenting Time rights.
1. Intentional Infliction of Emotional Distress
The first case to recognize a non-custodial parent’s cause of action based on the tort of intentional infliction of emotional distress was Sheltra V. Smith, 392 A. 2d 431 (Vt. 1978). In this case, the non-custodial parent brought suit for damages alleging that:
“defendant willfully, maliciously, intentionally, and outrageously inflicted extreme mental suffering and acute mental distress on the plaintiff, by willfully, maliciously, and outrageously rendering it impossible for any personal contact or other communication to take place between the (plaintiff and child).”
Id. at 433.
The Superior Court, Caledonia County, dismissed the complaint for failure to state of cause of action on which relief could be granted. The Supreme Court of Vermont, however, found that the plaintiff stated a prima facie case for outrageous conduct causing severe emotional distress.
The elements necessary to establish a prima facie case are:
1. outrageous conduct;
2. done intentionally or with reckless disregard of the probability of causing emotional distress;
3. resulting in the suffering of extreme emotional distress; and
4. actually or proximately caused by the outrageous conduct.
The case of Raftery v. Scott, 756 F. 2d 335 (4th Cir. 1985), a diversity action, involved an appeal by a custodial parent from a decision awarding the non-custodial parent damages of $50,000 ($40,000 compensatory damages and $10,000 punitive damages) pertaining to a claim of intentional infliction of emotional distress. The claim stated that by preventing the non-custodial parent from exercising Parenting Time rights, the custodial parent attempted to destroy the parent-child relationship.
The situation surrounding the claim was that the non-custodial parent was without knowledge as to the child’s whereabouts for four years and during that time the custodial parent had convinced the child that it should no longer see the non-custodial parent. Due to these circumstances, a medical health clinical director recommended that the non-custodial parent _no longer have Parenting Time because of the emotional impact it has on the child._ Id. at 337. The Court found that the facts independently supported a claim for intentional infliction of emotional distress and upheld the lower court decision.
The case of Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y. 1978), is another example of a court granting a remedy for intentional infliction of emotional distress. Here, a mother, individually and as guardian ad litem for her child, brought suit against the father and members of his family for, inter alia, malicious and intentional infliction of mental suffering resulting from the abduction of their infant child to a foreign country. In holding that plaintiff was entitled to recover damages (including a $100,000 award in punitive damages) for the intentional infliction of mental suffering from defendant and members of his family who aided in the abduction of the child, the court stated:
"It is difficult to conceive of intentional conduct more calculated to cause severe emotional distress than the outrageous conduct of the defendant _ in surreptitiously abducting the infant, from his mother who had legal custody _ This outrageous conduct constitutes the distinct tort of intentional infliction of mental suffering under New York decisional law." Id. at 20. This quote is exemplary of the evolving attitude of intolerance of the courts toward violations of legally-sanctioned custody.
2. Interference with Parenting Time
Due to the difficulty of proving outrageous conduct and severe emotional distress, in recent years some injured parents have brought tort actions for interference with Parenting Time.
In an action for interference with Parenting Time , the injured parent need only prove that defendant’s wrongful conduct was intentional, and that plaintiff suffered compensable damages due to that wrongful conduct to recover damages.
The first case to extend tort liability for interference with Parenting Time was Ruffalo v. United States, 590 F. Supp. 706 (W.D. Mo. 1984). This case involved a mother who sued the U.S. government for interference with her Parenting Time rights after the U.S. government took her child into the witness protection program along with the father. The mother asserted a claim in excess of $1 million for federal depravation of her right to custody of her child, denial of due process and interference with her parental role. The court granted the mother damages of only $17,000 for loss of communication and Parenting Time with the child, but it should be noted that the amount of the damage award in this case was small because the violation was found not to be of a lasting nature.
In her suit against the father for the wrongful inclusion of the child in the witness protection program, Ruffalo v. Civiletti, 539 F. Supp. 949 (W.D. Mo. 1982), the court found that although the father had physical custody of the child, the mother had legal custody, and ruled that the government violated the mother’s rights by admitting the child to the witness protection program and preventing the mother from communicating with the child for over four years.
The case of Wise v. Bravo, 666 F. 2d 1328 (10th Cir. 1982), a father brought a civil rights suit under 42 U.S.C.A. _ 1983 against the city police department and a police officer for damages allegedly arising from police interference with his child Parenting Time rights. The action arose from the father’s refusal to return his child to the custodial parent after a visit. The mother (custodial parent) summoned the police, who forcibly retrieved the child from the father.
The United States District Court for the District of Colorado denied the father any recovery because formal Parenting Time ights had not been ordered through the divorce decree. Therefore, the Court reasoned, the Parenting Time deprivation did not reach a federal constitutional level necessary for recovery. The Tenth Circuit affirmed the district court on appeal.
This case is interesting as the court’s reasoning suggests that the non-custodial parent could have prevailed had formal Parenting Time rights been ordered through the divorce decree.
In the case of Hall v. Hall-Stradley, Denver (Colo Dist. Ct.) No. 84-CV-2865, 11/26/86 (currently under appeal), a non-custodial father brought suit against the custodial mother, her husband and her attorney for interference with the family relationship and for intentional infliction of emotional distress. The first count of the complaint, interference with the family relationship, was dismissed.
The court awarded the non-custodial father damages of $370,000, however, for interference with his right to visit with his children, which resulted from their being removed from the country without his knowledge for approximately two years.
Such severe damage awards are indicative of the courts’ efforts to deter a custodial parent from interfering with Parenting Time between the non-custodial parent and the child.
Court decisions are working toward the desired result of involving both parents in a child’s upbringing following divorce. Due to the difficulty of proving outrageous conduct and severe emotional distress, the current trend suggests that bringing an action for interference with Parenting Time will provide a remedy to the problems involved in these situations.
1 Sheltra v. Smith, 392 A.2. 431 (Vt. 1978)
2 Raftery v. Scott, 756 F. 2d 335 (4th Cir. 1985)
3 Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y. 1978)
4 Ruffalo v. United States, 590 F. Supp. 706 (W.D. Mo. 1984)
5 Ruffalo v. Civiletti, 539 F. Supp. 949 (W.D. Mo. 1982)
6 Wise v. Bravo, 666 F. 2d 1328 (10th Cir. 1982)
7 Hall v. Hall-Stradley, Denver (Colo. Dist. Ct.) No. 84-CV-2865, 11/26/88 (as reported in Fam. L. Rep. (BNA), January 6, 1987, Vol. 13, No. 9)