It is unfortunate for both the parent and the child when the other parent engages in illegal interference with child custody and visitation. Many parents in this situation wonder what they can do. As outlined below, there are two main ways to deal with this type of child abduction. Maryland recognizes a tort action for damages if the interference is sufficiently extreme and outrageous. However, prevailing in such a case is rare. The more common method of remedying the situation is to file for an emergency modification of custody and visitation.
Civil Action for Interference with Visitation and Custody
Recently, in Haines v. Vogel, 249 A.3d 151 (2021), the Court of Special Appeals reiterated the requirements for an intentional interference with visitation and custody tort action. The parents in Haines had two children together, and just could not get along. The mother would allegedly engage in deliberate efforts to alienate the children from the father, such as by making inappropriate comments about the father in front of the children. The father also claimed that the mother gave the children cell phones so that she could constantly call them during his visitation periods. Moreover, the father alleged that the mother would encourage the children not to return the father’s phone calls. A family psychiatrist confirmed that the children grew to harbor great hostility toward the father. Based on these facts, the father argued that the mother’s deliberate attempts to damage his relationship with the children amounted to tortious interference with visitation.
After analyzing prior cases of illegal interference with visitation, the court concluded that the father failed to meet his burden. Specifically, the court recognized that the tort action required proof that the mother’s conduct was “(1) intentional, (2) outrageous, and (3) involve[d] the physical removal and harboring of the child from the parent.” Id. at 161. Essentially, the court recognized that Maryland law required proof of “abduction.” The court ruled against the father because it concluded that “the requisite outrageous conduct cannot be merely words or acts that cause estrangement.” Id. Rather, the court interpreted the law to require actual “physical removal of the child from a parent.” Id.
An example of when this burden is met occurred in Khalifa v. Shannon, 945 A.2d 1244 (2008). There, the mother lied to the father by telling him she was just taking the children on a trip to New York City, when in reality she abducted them and fled to Egypt. The court found that this was sufficiently outrageous because it went “beyond all possible bounds of decency,” and involved actual abduction. Id. Accordingly, the appellate court upheld the jury’s award of $3 million in compensatory and punitive damages. Id.
In sum, the $3 million jury award in Khalifa shows that a tort action for illegal interference is no joke. However, Haines shows that the burden to win such a case is very high. A parent must essentially show that the other parent used deception or other malicious means to actually make it impossible for the parent to exercise their visitation or custody rights.
Emergency Custody Order
Fortunately, a tort action for damages is not the only remedy. In fact, such a case is rare. Most attorneys correctly advise the client to file for an emergency custody order.
This was actually mentioned in Haines. Even though the court dismissed the tort case for illegal interference, the court nevertheless made a point of stating:
Mother’s behaviors, if proven, may appropriately form the basis of a civil contempt petition or a motion to modify custody or visitation. It is conceivable that the court could modify custody or visitation, provided that Father proves a material change in circumstances and that the proposed modification is in the child’s best interests. … Separately, Mother’s actions may amount to a willful disregard of the court’s visitation order. … Either petition would be a more prudent course than allowing one parent to sue the other for money damages to resolve these important issues.
249 A.3d at 162. So, in other words, while the court did not believe that the mother’s alleged acts of damaging the father’s relationship with the children allowed a tort suit for damages, the court did believe that the mother’s misconduct might justify a modification of custody in favor of the father, and perhaps even a contempt finding (which can sometimes involve reimbursement of counsel fees and jail time).
Our law firm agrees that this is the correct approach. A child custody lawyer should always advise the client to file emergency papers and secure access to the child before even considering a civil suit for money damages.
What About the Police?
Police involvement is a tricky area. Technically, the law does allow a police officer to enforce a custody order if there is a clear violation. For example, if the order expressly states that a parent is allowed visitation on a given day, and if the other parent refuses to transfer the child on that day, a police officer would have authority to use normal law enforcement measures to make the transfer happen.
But, in practice, the police rarely take such measures. And, from the point of view of the police, this makes sense. An officer knows that if they tell one parent to transfer the child, the parent will have a story ready to tell them about how they cannot transfer the child because of fears that the other parent will harm the child. Then, the officer is placed in a difficult situation. On the one hand, there is an order stating that the transfer must occur. On the other hand, the officer has no idea who is telling the truth about whether the transfer will result in harm to the child. No police officer wants to use physical force under these circumstances. So, normally the police will instruct the parent to resort to the court system.
Again, we do not fault the police for this. No amount of training will turn a police officer into a mind reader. It is impossible to know who to trust when you have two emotional adults vigorously arguing their case and claiming to be the good guy. We often tell clients the same thing about judges – do not go into court assuming that the judge will automatically believe you and be on your side. Our experience is that most judges will distrust both parents equally until one side presents clear evidence in a straightforward, easy to understand fashion that leads to a persuasive, logical and common sensical conclusion supported by legal precedent.
A parent should act quickly if the other parent violates a court order regarding child custody and visitation. The first thing the parent should do is file for an emergency custody order. A parent may also call the police if there is a clear violation of the order, but keep in mind that usually the police will stay out of the matter and instruct the parent to resort to the court system. After securing access to the child, the parent may also consider filing a tort action for damages if the other parent’s conduct amounted to clear child abduction, and was sufficiently outrageous to cause severe emotional distress. It is rare to prevail in such a tort case because the courts impose a very high burden to recovery.
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