When Tort Law and Family Law Intersect

            Many people do not realize that family law and tort law occasionally intersect.  While Virginia does not recognize common tort causes of action such as alienation of affection or seduction, there could be other civil tort options available that coincide with family law. 

 

Historical Background:

            Virginia Code § 8.01-220 abolished alienation of affection as a tort cause of action.  This section of the Code states, “no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversation….”  Before this Code section was enacted, a married person could sue a third party based on willful or malicious interference with the marital relationship.  Usually, these types of suits were brought by one spouse against the other spouse’s romantic partner. 

            In 2000, the Supreme Court of Virginia ruled that Virginia Code § 8.01-220 also abolishes claims for intentional infliction of emotional distress when the conduct causes harm to a marriage. 

 

Available Tort Remedies

            While spouses cannot currently recover against a third party under alienation of affection or intentional infliction of emotional distress, Virginia does recognize the tort of tortious interference with parental rights. Because the relationship between a parent and child is protected by the Constitution, the cause of action against third parties who attempt to interfere with a parent’s right to raise his or her children is prohibited. 

 

How to Prove Tortious Interference with Parental Relationship

            In order to prove tortious interference with a parental relationship, the following elements must be met:

  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 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

 

Damages

            If all the elements listed above are met, both tangible and intangible damages can be awarded.  This award can include compensatory damages for the expenses that the parent spent in seeking the recovery of his/her child, lost companionship, and mental anguish. 

 

Defenses

            The tortious interference with parental relationship claim cannot be a cause of action between parents in order to prevent intra-family disputes.  Additionally, a party will not be held liable for this tort if he or she possessed a reasonable, good faith belief that interference with the parent’s parental relationship was necessary to protect the child from harm. 

            While these two defenses are the most common, a court may recognize other defenses to this tort claim as well. 

 

Based on the law stated above, it is clear that family law clients do have some civil tortious remedies available to them.  However, it can be difficult to navigate the case law and Code Sections surrounding these remedies.  Call the attorneys at Smith Strong at (804) 325-1245 or (757) 941-4298 for assistance.

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg