Tort Remedies For Interference With Parenting Time (Visitation)

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Divorce is rarely easy. Occasionally there will be a tale of couples who amicably splits their assets, share their children, and are successful in co-parenting and raising children who are psychologically sound and happy. They might even vacation together, or be friends. They might share holidays.

What happens when that doesn’t happen — when the opposite occurs? Perhaps there is mental illness, substance abuse, unresolved anger, conflicting beliefs regarding ethics and religion, financial woes, and square in the middle are one or more little people. When divorce that involves child custody turns ugly, is that all there is to it? A divorce that just went very wrong, like the marriage before it?

According to, clinical psychologist Dr. Craig Childress says it is a situation in which one parent consciously or subconsciously turns their shared children against the other parent, through various means of manipulation. It often involves the premise that one parent falsely accuses the other of abuse and indoctrinates the child into believing that abuse took place, whether it be mental, physical, sexual, or a combination. While there are true cases of abuse, and even times when either parent may have behaved in a way that was not appropriate, what is key is to look at the childrens’ behavior, says Dr. Childress.

Eventually, children can become so indoctrinated and eager to please who they view as the “powerful parent,” they may start hating, harassing, or abusing the targeted parent themselves.

What drives a parental alienator? Most commonly, some type of narcissistic personality features, says Dr. Childress. According to Dr. Childress, parents who indoctrinate children into alienating the other parent are linked to narcissist borderline pathogenic parenting.

The symptoms of narcissism include: grandiosity, entitlement, absence of empathy, haughty, arrogant behavior and delusional belief systems. Although narcissistic personality disorder is listed in the DSM-5, which is considered to be the “Bible” of Psychiatric Disorders, so far Parental Alienation Disorder is not listed. Researchers expect that to soon change.

The late author and child psychiatrist Richard A. Gardner coined the term Parental Alienation Syndrome more than 20 years ago. He characterized the breakdown of previously normal, healthy parent-child relationships during divorce and child custody cases. His definition of parental alienation is simple — one parent deliberately damages, and in many cases destroys, the previously healthy loving relationship between the child and the child’s other parent.

This can be very difficult to prove, although it has been successfully used in the United States to win child custody cases, with custody going to the targeted parent. The reason it is difficult to prove is that one symptom is the child steadfastly refuses they are being indoctrinated by the other parent, and claims their hatred of the other parent is of their own will.

Researcher Amy Baker says that parents who try to alienate their child from the other parent subtlety, or not so subtletly gives a three-part message to the child.

Tort Remedies For Interference With Parenting Time (Visitation) | Parental Alienation Syndrome Awareness |

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...

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