Civil actions resulting from domestic violence — some of the defendants may surprise you
The phrase, “rule of thumb,” originated in England but was carried over into this country where, well into the last century, it was legal for a husband to beat his wife or children with a stick as long as the weapon was no thicker than the husband’s thumb.
This is the second in a series of articles presenting an overview of how domestic violence victims can be “plaintiffs.” We’ll explain how civil causes of action can be used to obtain redress for the various forms of domestic violence perpetrated against spouses, children and, in an increasing number of cases, third parties.
Intentional interference with parental rights
Parental Alienation Syndrome (“PAS”) was coined by Dr. Richard Gardner in 1987 as “a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrination and the child’s own contributions to the vilification of the targeted parent.”1
While not an independent cause of action in tort, obsessive alienators often resort to or incorporate recognized torts into their behavior due to their evangelical hatred of the other parent and mistrust and lack of respect of courts and judicial procedure; theirs is a “higher” calling than mere family court jurisdiction: the protection of their children from all others who are either their allies or their enemies. They no longer can separate their children’s feelings, beliefs and desires from their own and have the zealot’s disdain for any intimation that their behavior is inappropriate.
Interference with parental rights/custody
The tort of Intentional Interference with Parental Custody is set forth in the Restatement of Torts (Second) which states that:
One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.2
Kidnapping and Abduction
While an increasing number of states have enacted statutes which permit recovery in tort for child abduction, others, such as Ohio – specifically exclude from liability a parent who abducts his or her own child. Most states have, however, recognized tort actions against parents who interfere with the other parent’s relational rights with their children.
While a parent has no common-law right of action for the alienation of a child’s affections, both common law and the Restatement of Torts have held liable any person who intentionally interferes with the custody of children by abducting a child, enticing a child away, or harboring a child who had left home against the wishes of his or her parent.3
In 1983, Texas enacted a statute enabling a non-custodial parent to recover against a person who damages his or her court-ordered “possessory interest,” defining that as a “right of possession of or access to a child” including custody and visitation rights.4 Other states such as New York have refused to recognize such a cause of action for alienation of affections of a child,5 as have Iowa, Indiana, North Carolina, and Massachusetts.
In any action for interference with the custodial relation of parent and child, the defendant – including the other parent in those jurisdictions in which a parent may be charged with abduction of his or her own child – may be sued for kidnapping or abducting the child by force, consent being no defense as minors may not validly consent to violation of existing court orders or other torts. The parent or a third party (often assisting the non-custodial parent) may be charged for enticing the child away from the custodial parent; for harboring the child by way of inducing or encouraging the child to remain away from home without the custodial parent’s consent; or for providing the instrumentality by which the child is abducted, concealed, or detained in violation of a valid court order – even if the act was merely the mailing of a bus ticket.
Many courts are affirming increasingly large recoveries for compensatory and exemplary damages for such acts, including for the loss of the right to love, advice, comfort, companionship, and society of the child, the wronged person’s damaged feelings, mental suffering (intentional and negligent), expenses incurred in effecting recovery of the child, medical treatment, psychiatric treatment, travel expenses, legal costs, and even a variable award of punitive damages when the tort is ongoing and continuous.
In California, the The Synclair-Cannon Child Abduction Prevention Act of 2002 (Fam. Code §3048, modified effective 7/14/03 as urgency legislation) mandates trial courts to make specific findings in every custody and visitation order and, where certain objective factors exist, to make extensive orders designed to combat possible child abduction.6
In 1979, after extensive searching to recover children wrongfully taken by a non-custodial father with the assistance of relatives, and utilizing the services of the United States State and Treasury Departments, local police, sheriffs, and a psychic to locate the children, one angry California trial court awarded $1 million in compensatory damages and $550,000 in cumulative punitive damages against the father.7
Interference with visitation rights and child enticement and harboring
A parent is liable to the other if, with knowledge that the child has left the home of the custodial parent against that parent’s wishes, he or she induces the child not to return or prevents the child from returning.8 There must be some affirmative act, such as “decoying” or enticing away in order to find liability for this tort.
Harboring requires a showing of conduct by the non-custodial parent which induces the child not to return to the custodial parent or which prevents the child from doing so.9
Critical here is ensuring that the acts complained of are in derogation of a clear, specific, valid court order of which the accused parent was aware – essentially, the elements needed to find a party guilty of contempt of court for violation of such order.
Intentional Infliction of Emotional Distress
The elements needed to find liability under this theory are no different from that needed to find this liability appurtenant to any other tort, and include that:
• The defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his or her conduct;
• The defendant’s conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community.
Vermont recognized this distinct tort in the family law context in 1978, when one parent willfully and maliciously prevented the other from having any personal contact with their child for one month.10
California has held that the psychotherapist-patient privilege does not prevent testimony regarding a doctor’s report made under the Child Abuse Reporting Act in a tort action by the husband, whose visitation was temporarily limited due to false allegations of abuse, for defamation and intentional infliction of emotional distress, the court holding that after balancing the competing public policies regarding the wife’s privacy rights, the fostering of open communication with therapists, protection of children and the ascertainment of truth in tort litigation, the husband’s need for limited disclosure in his tort suit outweighed the other considerations.11
However, in California, an action by one parent against the other for damage to the parent/child relationship should be brought in the Family Law Act proceeding, not as separate action for intentional infliction of emotional distress.12
Third-party domestic torts
As was touched upon earlier, third parties may be liable in tortious civil conspiracy for aiding and abetting child abduction, or those who counsel such actions in derogation of a valid, existing court order of custody. When considering the possibility of a lawsuit against third parties to a marriage or parental relationship, or with regard to child endangerment or alienation of the parent-child relationship, defendants break down into several discrete classes:
• Treating Therapists; Physicians
• Those Breaching Duty of Reporting Imposed by Special Relationship
• Failure of Mandated Reporters or Others to Report Child Abuse or Neglect; these would include attorneys who fail to properly advise or obtain protective orders, and the other parent.
• Civil Conspiracy
• Insurance Companies
Treating physicians or therapists have a long-standing duty to third parties to warn them about, or even prevent, their injury at the hands of, patients who have or who the treating party has reason to believe constitute such a threat of violent behavior.13 Courts have increasingly expanded the common law rule, which traditionally imposed liability for failing to control the conduct of another person, or to warn of foreseeable harm by that person, only when there was a special relationship to the dangerous person or to the potential victim.
Special relationship situations
Generally, one does not have a duty to control the conduct of another person so as to prevent that person from harming someone else; an exception exists where there are certain defined “special relationships” between the parties. Closely allied with the information above, therefore, is the concept that a treating physician has a duty to warn potential victims of the threat posed by a patient who possesses a communicable disease, a concept brought to a head in the 1980s as the threat and extent of HIV/AIDS became more widely known. Physicians and therapists may likewise have a duty to inform the person at risk, such as the patient’s spouse, of the infection and the risk of harm.
Following California’s lead in Tarasoff, the State of Michigan has held that a defendant psychiatrist owed a duty to those persons readily identifiable as foreseeably endangered by the violent or assaultive conduct of his patient.14 The following year that same court expanded the Davis Court’s narrow interpretation of “special relationship” to include a physician who administered drugs to control his patient’s epilepsy, holding that the doctor-patient relationship was sufficiently “special” to impose a duty on the psychiatrist with respect to other persons who might be injured by the patient – including the driver the patient killed when his medications led to his crossing the center line of a freeway.15 The Duvall Court left it as a matter for the jury to determine foreseeability; if established, liability followed as a matter of law.
Municipality/Law Enforcement Special Relationships
A special duty of protection arises between a municipality, its law enforcement agencies and officers, and a plaintiff spouse or child when the plaintiff spouse has obtained a valid domestic violence or other CLETS protective order and served it upon the public agency(ies). This is not, however, identical to a “special relationship” which would create liability toward an injured third party. As a practical matter, a municipality cannot be held liable for injuries inflicted resulting from a failure to provide adequate police protection absent a special relationship existing between the municipality and the injured party. A municipality does not owe to its citizens a general duty in the performance of governmental functions, and courts will not normally examine the reasonableness of the municipality’s actions.16
The key distinguishing factor where courts have found such a special relationship to exist stems from some direct contact between agents of the municipality and the injured party, such as when a municipality fails to protect the safety of a witness to a violent crime and who collaborated with the police in the apprehension of a dangerous fugitive, and who received death threats as a result.17 This has been expanded in some jurisdictions to include civil liability for police departments and their officers who repeatedly fail to take action to prevent recurrent violations of valid domestic violence protection statutes, finding that a special relationship, on the facts of specific cases, existed between the municipality and the victim due to the foreseeability of the harm which was occurring over a protracted period of time, and arising from:
• The existence of, and the municipality’s having been served with, a valid domestic violence prevention order of protection;
• The police department’s awareness of the perpetrator’s ongoing pattern of violence toward the plaintiff;
• Failure to respond to the victim’s pleas for assistance on the dates of the incidents in question; and:
• The victim’s reasonable expectation of police protection.18 In the Sorichetti case, the New York Court of Appeals upheld a $2 million verdict against the City of New York for its breach of the special relationship found to exist based on the criteria noted above.
Failure to Report Evidence of Child Abuse
Child abuse and neglect reporting statutes by certain professionals initially included only physicians; this has been almost greatly expanded in most states to embrace, variously, nurses, surgeons, medical examiners or coroners, dentists, osteopaths, optometrists, chiropractors, podiatrists, psychologists, school teachers and officials, police, social workers, and day care personnel. Most states imposing such requirements provide for civil penalties for a knowing and willful failure to report where such failure results in the commission of an act which, but for the failure to report, might foreseeably and proximately have been prevented, as well as for criminal penalties, usually misdemeanors.
Such statutes break down roughly into two categories: on one, an objective standard abides since there must be “reasonable cause to believe” that abuse or neglect has occurred to trigger the duty to report; in the other category, the reporter must know or suspect that abuse or neglect has occurred – a subjective standard more readily allowing the reporter to shield his or her poor judgment in failing to report. California follows the former standard, and has one of the most expansive categorizations of mandated reporters in the country.19
Improper Release, Supervision, or Placement
Following the reasoning of Tarasoff, public entities such as parole boards or child protective agencies may be held liable for releasing, without warning to potential victims, defendant spouses or parents who pose a foreseeable threat of harm to the plaintiff spouse or child if the plaintiff was readily identifiable and who could be effectively warned of the danger. In Johnson v. State, the State of California, acting through a youth authority placement officer, placed a minor with “homicidal tendencies and a background of violence and cruelty” in the plaintiff’s home; he later attacked the plaintiff. In sustaining the plaintiff’s judgment, the appellate court held that:
The state’s relationship to plaintiff was such that its duty extended to warnings of latent, dangerous qualities suggested by the parolee’s history or character. [Citations omitted]. These cases impose a duty upon those who create foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril. Accordingly, the state owed a duty to inform Mrs. Johnson of any matter its agents knew or should have known that might endanger the Johnson family. . . 20
Compensatory damages have been assessed against parents, grandparents, stepparents, other relatives, well- (or ill-) meaning friends, and even attorneys who counsel parents to so act in child-snatching cases.
Civil conspiracy consists of a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose.21 This tort has been employed to hold liable relatives who assist a non-custodial parent in violating a valid court order by interference with the other parent’s parental rights, in at least Missouri one case holding a defendant mother-in-law liable for assisting her son in derogation of a valid court order, and imposing both compensatory and punitive damages.22
To come in the next installment:
• Claims cognizable under Section 1983 of the Civil Rights Act, 42 USC §1983 (1981);
• Invasions of Privacy;
• Liability of Attorneys who recommend mental health professionals;
• Availability of Insurance coverage for familial torts.
Also: Actions in tort by children themselves, and anticipation of defenses to the torts raised in parts I and II.
2016 by the author.
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