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The U.S. district court certified questions of law to the Supreme Court concerning Virginia law. The questions arose out of a suit filed by John Wyatt, who sought monetary damages for the unauthorized adoption of his baby. Wyatt named as defendants the individuals and entities involved in the adoption and asserted numerous claims, including one for tortious interference with parental rights. Upon consideration of a motion to dismiss filed by Defendants, the district court denied the motion as to the claim for tortious interference with parental rights pending its request that the Supreme Court adjudicate whether Virginia recognizes such a cause of action. The Supreme Court (1) held Virginia recognizes tortious intereference with parental rights as a cause of action; and (2) referred the U.S. district court to the opinion for the elements constituting the tort.Receive FREE Daily Opinion Summaries by Email
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JOHN M. WYATT, III, ET AL.
Record No. 111497
JUSTICE LEROY F. MILLETTE, JR.
April 20, 2012
MARK MCDERMOTT, ET AL.
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Pursuant to Article VI, Section 1 of the Constitution of
Virginia and Rule 5:40, the United States District Court for
the Eastern District of Virginia, Alexandria Division (the
district court), by its order entered August 16, 2011,
certified questions of law to this Court concerning whether
Virginia recognizes tortious interference with parental rights
as a cause of action and, if so, what elements constitute such
The certified questions of law before us arise out of a
motion before the district court to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Accordingly, the factual allegations in the complaint are
accepted as true for the purposes of framing an answer that is
responsive to the needs of the district court.
Zinermon v. Burch, 494 U.S. 113, 118 (1990).
John M. Wyatt, III, is seeking monetary damages for the
unauthorized adoption of his baby, herein referred to as E.Z.
E.Z. is the biological daughter of Wyatt and Colleen Fahland,
who are unmarried residents of Virginia.
Prior to E.Z.'s
birth, Wyatt accompanied Fahland to doctors' appointments and
made plans with Fahland to raise their child together.
Wyatt's knowledge, Fahland's parents retained attorney Mark
McDermott to arrange for an adoption.
While Fahland informed
Wyatt of her parents' desire that she see an adoption attorney,
she assured Wyatt that they would raise the baby as a family.
During a January 30, 2009 meeting with McDermott, Fahland
signed a form identifying Wyatt as the birth father and
indicating that he wanted to keep the baby.
Fahland offered to
provide Wyatt's address, but McDermott told her to falsely
indicate on the form that the address was unknown to her, which
She also signed an agreement in which she requested
that the adoptive parents discuss adoption plans with the birth
Wyatt was "purposely kept in the dark" about this
meeting, and Fahland continued to make false statements to
Wyatt at the urging of McDermott, indicating that she planned
to raise the baby with Wyatt, with the purpose that he would
not take steps to secure his parental rights and prevent the
To facilitate an adoption, McDermott contacted "A Act of
Love" (Act of Love), a Utah adoption agency, and Utah attorney
Larry Jenkins with Wood Jenkins LLP, a Utah law firm
representing Act of Love.
Approximately one week prior to E.Z.'s birth, Fahland and
her father met again with McDermott.
At McDermott's urging,
Fahland spoke to Wyatt briefly on the phone and then sent him a
text message informing him that she was receiving information
about a potential adoption.
Later that day and throughout the
week prior to E.Z.'s birth, Fahland continued to assure Wyatt
that she still planned to raise the baby with him.
Fahland concealed the fact that she was in labor during
conversations with Wyatt, at the direction of McDermott and on
behalf of the other defendants.
E.Z. was born two weeks early,
on February 10, 2009, in Virginia, and Wyatt was not informed
of the birth.
The next day, Fahland signed an affidavit
stating that she had informed Wyatt she was working with a Utah
adoption agency and an affidavit of paternity identifying Wyatt
as the father.
Despite her full knowledge of his address, she
placed question marks as to his contact information on the
notarized documents at the urging of McDermott.
Chandra Zarembinski, Utah residents who retained Act of Love to
assist them in adopting a child and planned to adopt E.Z.,
signed an agreement stating that they were aware that E.Z.'s
custody status might be unclear.
On February 12, Fahland
signed an affidavit of relinquishment and transferred custody
to the Zarembinskis, who had travelled to Virginia to pick up
Wyatt claims all defendants induced Fahland to
waive her parental rights knowing that Fahland did not want to
relinquish rights to the baby and that Wyatt believed he would
have parental rights.
On February 18, Wyatt initiated proceedings in the
Juvenile and Domestic Relations Court of Stafford County,
Virginia, to obtain custody of E.Z.
Although Wyatt was
ultimately awarded custody by the juvenile and domestic
relations court, the Utah courts have awarded custody of E.Z.
to the Zarembinskis.
Wyatt has been involved in a protracted
custody battle, the facts and proceedings of which are
extensive; the salient details are simply that, at the time of
the certification order, adoption proceedings were still
pending in Utah, and E.Z. remains with the Zarembinskis in Utah
to this date.
Wyatt filed an action in the district court against
McDermott, Jenkins, Wood Jenkins LLP, Act of Love, the
Zarembinskis, and Lorraine Moon, the Act of Love employee who
facilitated the adoption (collectively, Defendants), seeking
compensatory and punitive damages for the unauthorized adoption
as well as a declaratory judgment under the Parental Kidnapping
Prevention Act of 1980, Pub. L. No. 96-611, 94 Stat. 3568-3573,
that Virginia had jurisdiction to award custody of the child.
Wyatt asserted numerous claims, including one for tortious
interference with parental rights.
Upon consideration of a
motion to dismiss filed by Defendants, the district court
denied the motion as to the claim for tortious interference
with parental rights pending its request that this Court
adjudicate whether Virginia recognizes such a cause of action. 1
The following questions were certified to this Court by
the district court:
Whether the Commonwealth of Virginia recognizes
tortious interference with parental rights as a
cause of action?
If so, what are the elements of the cause of
action, and what is the burden of proof of such a
Rule 5:40(a) requires that a certified question be
"determinative" in "any proceeding pending before the
As the district court states, these
questions are determinative in the proceedings pending before
it because it must dismiss the claim for tortious interference
with parental rights if no such cause of action exists under
Accordingly, by order entered September 23,
2011, we accepted the certified questions.
The district court granted Defendants' motion to dismiss
as to claims for assault, battery, and kidnapping; denial of
civil rights under 42 U.S.C. § 1983; and a declaratory judgment
under the Parental Kidnapping Prevention Act. The district
court denied the motion as to claims for conspiracy, fraud, and
constructive fraud, finding that Wyatt had pled sufficient
facts to state a claim for relief under each of those theories.
A statutory basis for tortious interference with parental
rights is clearly absent from the Virginia Code; we therefore
focus our analysis on whether this tort exists at common law.
We conclude that, although no Virginia court has had occasion
to consider the cause of action, the tort in question has
indeed existed at common law and continues to exist today.
Furthermore, rejecting tortious interference with parental
rights as a legitimate cause of action would leave a
substantial gap in the legal protection afforded to the parentchild relationship.
We recognize the essential value of protecting a parent's
right to form a relationship with his or her child.
previously acknowledged that "the relationship between a parent
and child is constitutionally protected by the Due Process
Clause of the Fourteenth Amendment."
Copeland v. Todd, 282 Va.
183, 198, 715 S.E.2d 11, 19 (2011) (citing Quillon v. Walcott,
434 U.S. 246, 255 (1978)).
Indeed, the Supreme Court of the
United States has characterized a parent's right to raise his
or her child as "perhaps the oldest of the fundamental liberty
interests recognized by this Court."
U.S. 57, 65 (2000).
Troxel v. Granville, 530
It follows, then, that a parent has a cause of action
against third parties who seek to interfere with this right.
In the analogous case of Chaves v. Johnson, 230 Va. 112, 335
S.E.2d 97 (1985), we explicitly recognized the common law tort
of tortious interference with contract rights for the first
time, noting its historical basis in the Commonwealth.
We have not previously had occasion to consider this
precise aspect of the law of torts, although in
Worrie v. Boze, 198 Va. 533, 95 S.E.2d 192 (1956), we
affirmed a judgment granting relief for a tortious
conspiracy to procure a breach of contract. There,
we said: "It is well settled that the right to
performance of a contract and the right to reap
profits therefrom are property rights which are
entitled to protection in the courts. Consequently,
suits for procuring breach of contract proceed on
this basis." Id. at 536, 95 S.E.2d at 196.
Id. at 119-20, 337 S.E.2d at 102.
In Chaves, we were not
creating a new tort but rather recognizing that the common law
provided a cause of action for tortious interference with
The historical happenstance that the tort in
question had not previously been invoked in Virginia did not
prevent us from recognizing that the common law right of
contract necessarily brought with it, as a corollary, a right
to seek recompense against those who interfered with a valid
Noting the recognition of tortious interference with
contract by many of our sister states, by many English courts,
and in the Restatement of Torts, we concluded that a claim for
tortious interference with contract could be brought in
It would be remarkable indeed if the common law
right to be free from interference in contract were to be
deemed to be more valuable than the common law right of a
parent to be free from interference in a relationship with his
or her child.
In this case, following the blueprint set forth in Chaves,
we would not be creating a new tort, but rather recognizing
that the common law right to establish and maintain a
relationship with one's child necessarily implies a cause of
action for interference with that right.
To hold otherwise in
this case would be to recognize "a right without a remedy — a
thing unknown to the law."
Norfolk City v. Cooke, 68 Va. (27
Gratt.) 430, 439 (1876).
We acknowledge that the most direct and proper remedy, the
return of the child and restoration of the parent-child
relationship, may never be achieved through a tort action.
When a parent has been unduly separated from a child by a third
party for a substantial period of time without due process of
law, however, other legitimate harms may be suffered that are
properly recoverable in tort, including loss of companionship,
mental anguish, loss of services, and expenses incurred to
recover the child.
An examination of our law shows that the redress of these
wrongs is in some circumstances otherwise unavailable in the
Wrongful custodial interference is codified in
Code § 18.2-49.1 as a criminal offense, but this statute
provides no civil recovery.
Virginia also has well-developed
custody laws to manage intra-familial disputes, but custody
disputes do not implicate rights or duties of third parties,
such as are at issue here. 2
The Commonwealth provides for
causes of action for fraud and constructive fraud, but a third
party can wrongfully interfere with parental rights without
engaging in fraudulent behavior.
There remain many cognizable
scenarios in which intentional tortious interference with
parental rights could be invoked not as a legal redundancy, but
as a unique remedy.
Neither are we persuaded by the argument that, since an
action for tortious interference with parental rights requires
a threshold element of establishing parental rights, the cause
of action cannot lie because this determination cannot be made
in tort. Our law regularly allows for adjudications of
elements in tort that lie separate from adjudications for other
purposes, such as when a defendant may be held civilly liable
but not criminally guilty for the same offense. The fact that
parental rights are an element of the tort does not act as a
per se bar to the recognition of the tort. The finding of
parental rights in tort would not dictate the outcome of a
custody proceeding or adoption, although a custody
determination or adoption could provide evidence of parental
rights in a tort proceeding.
B. Common Law Origins and Persuasive Authority
The recognition of tortious interference with parental
rights finds precedent in our common law.
We have previously
stated that "our adoption of English common law . . . ends in
1607 upon the establishment of the first permanent English
settlement in America, Jamestown. From that time forward, the
common law we recognize is that which has been developed in
Commonwealth v. Morris, 281 Va. 70, 82, 705 S.E.2d
Prior to 1607, a comparable cause of action did
lie in England, providing a father with recourse for the
abduction of his heir or sons rendering services.
v. Page, 169 N.E. 650, 651 (N.Y. 1930) (citing Barham v.
Dennis, (1599) 78 Eng. Rep. 1001 (K.B.); Cro. Eliz. 770).
Clearly, there are ways in which this ancient writ is
markedly different from the modern cause of action urged by
Wyatt, which would permit recourse for either parent,
regardless of gender, and which encompasses a recovery not
merely for loss of services but also for loss of companionship.
This difference reflects society's changing values as reflected
in this Court's rulings over the centuries, including
principles of gender equality, an inherent value in the
relationship between parents and their children beyond the
value of services rendered, and the modern trend in tort law to
make plaintiffs whole by compensating not only pure pecuniary
loss but also emotional harm.
Although the action has not heretofore been brought in
Virginia, and hence has never come before this Court, its
evolution elsewhere can be clearly identified.
wrote that the abduction of any child, not merely an heir, was
"remediable by writ of ravishment, or, action of trespass vi et
armis, de filio, vel filia, rapto vel abducto; in the same
manner as the husband may have it, on account of the abduction
of his wife." 3 William Blackstone, Commentaries *140-41
(internal footnote omitted).
By 1938, the American Law
Institute's first Restatement of Torts included recovery for
the abduction of a child, and the Restatement (Second) of Torts
§ 700 recites the more modern embodiment of the ancient writ:
"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."
In Stone v. Wall, 734 So.2d 1038 (Fla. 1999), the Florida
Supreme Court, responding to a certified question of law from
the United States Court of Appeals for the Eleventh Circuit,
recognized the common law tort of custodial interference in
Florida as a modern iteration of the English common law writ:
As indicated, the tort of intentional
interference with the custodial parent-child
relationship has its origins in English common law
and is derived from a cause of action for the
abduction of the father's heir. The tort has evolved
significantly since 1600 so that in its contemporary
version either custodial parent may recover, the
child does not have to be the heir, and recovery is
not predicated on loss of services but on the
sanctity of the parent-child relationship.
It would be violative of constitutional equal
protection issues not to recognize the equal rights
of both parents in allowing either a cause of action
or an element of damages. Additionally, outdated
common law principles based on the view that children
are nothing more than the economic assets of their
parents have likewise been replaced with a more
enlightened and realistic view of the role of
children in their parents' lives. Thus, the cause of
action for interference with a custodial parent-child
relationship is a natural progression of the common
law with due regard for constitutional principles,
changes in our social and economic customs, and
present day conceptions of right and justice.
Id. at 1044 (internal citations and quotation marks omitted).
The overwhelming majority of the high courts of our sister
states that have considered the issue have also recognized such
a tort, many of them tracing its evolution in the common law.
See, e.g., Anonymous v. Anonymous, 672 So.2d 787, 789, (Ala.
1995) (noting that the Restatement (Second) of Torts § 700 does
not represent a new tort in Alabama but rather "accurately
reflects the common law principle that parents have a right to
the care, custody, services and companionship of their minor
children, and [that] when they are wrongfully deprived thereof
by another, they have an action therefor" (internal quotation
marks omitted)); Washburn v. Abram, 90 S.W. 997, 998 (Ky. 1906)
(concluding that, although the common law right of action
historically arose from the right of the father to recover for
lost services of his child and such allegations are necessary
for recovery, "[i]t matters not whether the child [actually]
renders such services; and [the parent] is not confined in a
recovery to the loss of services alone, but may recover damages
for injury to his feelings and the loss of companionship of his
child"); Khalifa v. Shannon, 945 A.2d 1244, 1248-62 (Md. 2008)
(recognizing a common law action of interference with parentalchild relations against one who abducts and/or harbors a child,
and, in a thorough discussion of the evolution of the common
law, finding that loss of services was never a substantive
element of the common law tort but rather tied to certain
ancient English forms of remedy); Plante v. Engel, 469 A.2d
1299, 1302 (N.H. 1983) (holding the intentional aiding and
abetting in the interference of parental rights to be an
actionable tort in New Hampshire); Silcott v. Oglesby, 721
S.W.2d 290, 293 (Tex. 1986) (recognizing that the common law
had evolved to substantially track the Restatement (Second) of
Torts § 700); Kessel v. Leavitt, 511 S.E.2d 720 (W.Va. 1998)
(upholding a finding of tortious custodial interference against
maternal grandparents, uncle, and mother's attorney, but not
the child's mother, due to her equal parental rights).
which likewise addressed an adoption dispute, provides a
particularly helpful model for the elements of the tort. 3
Part II.D., infra.
In evaluating certified questions of law, we are
ultimately charged with "stating the law governing each
The evolution of the common law of
our sister states and of the laws of England where similar
actions have been brought since 1607 provides persuasive
authority as to the certified questions of law set before the
Justice McClanahan asserts in her dissent that the
recognition of custodial interference torts, addressed in some
of the above-referenced cases, is irrelevant to the tort of
parental interference in the context of an unauthorized
adoption because "Comment (c) [of the Restatement (Second) of
Torts § 700] states that [the cause of action] does not apply
when parents are entitled to joint custody and can only be
brought by the parent with sole or superior custody rights."
Comment (c) states:
When both parents entitled to custody and
earnings. When the parents are by law jointly
entitled to the custody and earnings of the child, no
action can be brought against one of the parents who
abducts or induces the child to leave the other. When
by law only one parent is entitled to the custody and
earnings of the child, only that parent can maintain
an action under the rule stated in this Section. One
parent may be liable to the other parent for the
abduction of his own child if by judicial decree the
sole custody of the child has been awarded to the
Thus, Comment (c) indeed bars suits between parents with equal
rights. It does not, however, bar proceedings against third
parties, nor does it require a custodial adjudication to
warrant a suit against a third party.
whether the common law recognizes tortious interference
with parental rights and, if so, what elements comprise the
Public Policy and Legislative Deference
We have a long tradition of deference to the legislature
concerning the adoption of any new theory of liability,
especially when conflicting public policy issues abound.
v. Hudgins, 232 Va. 491, 495, 352 S.E.2d 332, 334 (1987).
recognition of an existing common law tort is consistent with
this tradition of deference.
Indeed, in accordance with
legislative authority, the Court is obligated to continue to
enforce this tort as the law of the Commonwealth.
Assembly expressly directed in Code § 1-200 that "[t]he common
law of England, insofar as it is not repugnant to the
principles of the Bill of Rights and Constitution of this
Commonwealth, shall continue in full force within the same, and
be the rule of decision, except as altered by the General
As explained in Part II.B., supra, the common law
recognized an English writ providing a tort claim based on
wrongful interference with the parent-child relationship prior
This claim has never been altered by the General
Assembly and is repugnant to the principles of the Bill of
Rights and Constitution of the Commonwealth only insofar as it,
historically, was applied in such a manner that protected the
interests of fathers over mothers and valued male children over
Given that this gender bias existed
throughout 17th century common law, the proper remedy is not to
overlook the writ but rather to recognize the claim in a manner
consistent with the Bill of Rights and the Constitution of the
Commonwealth, providing equal rights to both genders and
allowing the common law claim to "continue in full force within
[the Commonwealth]," by operation of the plain language of Code
See, e.g., Jenkins v. Mehra, 281 Va. 37, 44, 704
S.E.2d 577, 581 (2011) (concluding that "[a]brogation of the
common law . . . occurs only when the legislative intent to do
so is plainly manifested, as there is a presumption that no
change was intended," and explaining that "[w]hen an enactment
does not encompass the entire subject covered by the common
law, it abrogates the common law rule only to the extent that
its terms are directly and irreconcilably opposed to the rule."
(second and third alterations in original) (internal quotation
The General Assembly possesses the authority to enact
legislation addressing the appropriate avenues for civil
recovery in cases of interference with parental rights and
offering guidance to this Court.
To date, it has declined to
The General Assembly's prerogative to legislate does
not negate our own judicial mandate to provide redress for
injuries to recognized common law rights that occur to
residents of the Commonwealth.
When such injuries occur, it is
appropriate that we offer a means of redress, and doing so does
not usurp legislative authority.
We are not persuaded by the argument that we should
interpret the General Assembly's statutory abolition of the
cause of action for alienation of affection, found in Code
§ 8.01-220, as somehow precluding a recognition of a cause of
action for tortious interference with parental rights.
are distinct causes of action with separate elements:
"Tortious interference with parental or custodial
relationship" intimates that the complaining parent
has been deprived of his/her parental or custodial
rights; in other words, but for the tortious
interference, the complaining parent would be able to
exercise some measure of control over his/her child's
care, rearing, safety, well-being, etc. By contrast,
"alienation of affections" connotes only that the
parent is not able to enjoy the company of his/her
child; this cause of action does not suggest that the
offending party has removed parental or custodial
authority from the complaining parent.
Kessel, 511 S.E.2d at 761 n.44.
The Florida Supreme Court, citing Kessel with
approval, likewise recognized the common law tort of
tortious interference despite a prior statutory abolition
of an action for alienation of affection.
Stone, 734 So.2d
The Restatement (Second) of Torts also considers
these causes of action to be two separate torts, and
rejects alienation of affection claims while approving of
the cause of action for tortious interference.
Restatement (Second) of Torts § 699 ("One who, without
more, alienates from its parent the affections of a child,
whether a minor or of full age, is not liable to the
The added element of physical
separation from the parent in tortious interference renders
the torts distinct.
In sum, it is clearly the case that this ancient writ –
today labeled tortious interference with parental rights – did
exist in English common law in 1607, that it can be construed
in a manner not repugnant to the Bill of Rights and the
Constitution of the Commonwealth, and that no affirmative steps
have been taken by the legislature to renounce the tort.
therefore answer the first certified question of law in the
Nature of the Tort
The Court is now left to determine what elements are
essential to the tort as it exists today, consistent with the
original writ, but in line with equal protection and modern
Kessel succinctly lays out the elements of this cause of
action, consistent with Virginia law:
(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, without that parent's consent, or by
otherwise preventing 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.
511 S.E.2d at 765-66.
Given the nature of the original English common law writ,
we must consider whether the harm and recoverable damages must
be limited solely to tangible loss of service.
We join the
high court of Maryland in concluding that "a focused analysis
reveals that loss of services has never been an element of the
tort itself, but rather, arose from common law pleading
requirements in force in England," which contained "artificial
divisions" between tangible loss of services and intangible
losses such as comfort and society. 4
Khalifa, 945 A.2d at 1256,
Under English form pleadings, interference with the
parent-child relationship could be redressed by an action of
trespass, and the plaintiff was required to elect between
pleading trespass vi et armis, which claimed direct tangible
injury, and trespass on the case, which claimed indirect
intangible injury. Khalifa, 945 A.2d at 1256-57. Virginia has
since rejected this distinction as "so nice and useless that
both the courts and the legislatures have manifested a decided
purpose to abolish the distinction." Stonegap Colliery v.
Hamilton, 119 Va. 271, 279-80, 89 S.E. 305, 307 (1916).
The evolution from form- to fact-based pleading in
Maryland, as in Virginia, dictates that the ancient pleading
requirements of English writs "no longer serve to define the
elements of the tort."
Id. at 1262.
We therefore conclude
that the modern iteration of this common law tort encompasses
both tangible and intangible damages, including compensatory
damages for the expenses incurred in seeking the recovery of
the child, lost services, lost companionship, and mental
Equitable remedies such as injunctions or custody
orders may not be awarded under this cause of action.
Finally, as we have previously stated, "[I]f a
tortfeasor's tort was intentional rather than negligent, i.e.,
deliberately committed with intent to harm the victim . . . and
if the evidence is sufficient to support an award of
compensatory damages, the victim's right to punitive damages
and the quantum thereof are jury questions."
Smith v. Litten,
256 Va. 573, 579, 507 S.E.2d 77, 80 (1998); see also Giant of
Virginia, Inc. v. Pigg, 207 Va. 679, 685-86, 152 S.E.2d 271,
Burden of Proof
We adhere to the ordinary burden in civil actions of
preponderance of the evidence.
308, 10 S.E. 7, 8 (1889).
Fudge v. Payne, 86 Va. 303,
We find no precedent to indicate
that this writ required any heightened standard of proof.
require a heightened standard of clear and convincing evidence
for intentional infliction of emotional distress, for instance,
because it is an action not favored by this Court due to the
Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162 (1991).
inherent ambiguity in proving harm to one's emotions or mind.
Although, as with many torts, juries may award some
compensation for mental anguish in intentional interference
cases, the harm lies in the physical interruption of the
parent-child relationship, a concrete factor.
conclude that the ordinary burden of preponderance of the
evidence is appropriate for a claim of intentional interference
with parental rights.
The minority of states that have resisted recognition of
tortious interference with parental or custodial rights have
done so based on policy grounds, citing concern for the best
interest of the child.
In Larson v. Dunn, 460 N.W.2d 39 (Minn.
1990), the Minnesota Supreme Court concluded that it was not in
the best interest of children to permit such a tort, because
"the law should not provide a means of escalating intrafamily
Id. at 46.
The court concluded that a tort
possessing the potential for such significant impact on
children should be properly evaluated as a matter of public
policy by the legislature rather than created by the courts.
Id. at 47.
The Minnesota Supreme Court's emphasis on the best
interest of the child was followed two years later by the
Oklahoma Supreme Court in Zaharias v. Gammill, 844 P.2d 137,
140 (Okla. 1992) ("We are convinced that the tort of
interference with custodial relations would not enhance the
scheme of family law in Oklahoma, and we expressly disapprove
We share these courts' concern for the well-being of
children caught in intra-familial disputes, a concern that was
not as prominent an issue in 1607, when only a male parent
could bring this cause of action.
The fear that this cause of
action would be used as a means of escalating intra-familial
warfare can be largely disposed of by barring the use of this
tort between parents, as other state courts have done.
West Virginia high court put this well in Kessel:
[W]e hold that a parent cannot charge his/her child's
other parent with tortious interference with parental
or custodial relationship if both parents have equal
rights, or substantially equal rights (as in the case
of a nonmarital child where the putative biological
father seeks to establish a meaningful parent-child
relationship with his child and, until such a
relationship has been commenced, does not have rights
identical to those of the child's biological mother),
to establish or maintain a parental or custodial
relationship with their child. In other words, when
no judicial award of custody has been made to either
parent, thereby causing the parents' parental and
custodial rights to be equal, no cause of action for
tortious interference can be maintained by one parent
against the other parent. Likewise, where no
judicial decree has been entered awarding custody of
a nonmarital child to one or the other of the child's
biological parents, the complaining biological parent
cannot assert a claim of tortious interference with
parental or custodial relationship against the other
511 S.E.2d at 766.
A similar bar is articulated in Comment (c)
to the Restatement (Second) of Torts § 700, excerpted in
footnote 3, supra.
Thus, we conclude that a defendant may
raise an affirmative defense of "substantially equal rights,"
as explained above in Kessel, as it is to the advantage of all
parties that such a determination be made early in the
Additionally, in the interest of the child, we note with
approval the affirmative defense of justification as set forth
in Kessel, wherein the court held that a party should not be
held liable if he or she
possessed a reasonable, good faith belief that
interference with the parent's parental or custodial
relationship was necessary to protect the child from
physical, mental, or emotional harm[; or] possessed a
reasonable, good faith belief that the interference was
proper (i.e., no notice or knowledge of an original or
superseding judicial decree awarding parental or custodial
rights to complaining parent); or reasonably and in good
faith believed that the complaining parent did not have a
right to establish or maintain a parental or custodial
relationship with the minor child (i.e., mistake as to
identity of child's biological parents where paternity has
not yet been formally established).
511 S.E.2d at 766.
We do not cite these as an exhaustive list of available
defenses, but rather note them due to their particular
importance, so that our explicit recognition of this tort does
not promote unnecessary intra-familial litigation or deter an
individual from acting when he or she holds a good-faith belief
that a child is in danger.
Often, in considering a certified question of law, the
facts of a particular case serve only to define the scope of
the inquiry to yield a determinative answer for the presiding
In this instance, however, the facts as pled are
illustrative of the basis and continuing need for this action
It is both astonishing and profoundly disturbing that in
this case, a biological mother and her parents, with the aid of
two licensed attorneys and an adoption agency, could
intentionally act to prevent a biological father — who is in no
way alleged to be an unfit parent — from legally establishing
his parental rights and gaining custody of a child whom the
mother did not want to keep, and that this father would have no
recourse in the law.
The facts as pled indicate that the
Defendants went to great lengths to disguise their agenda from
the biological father, including preventing notice of his
daughter's birth and hiding their intent to have an immediate
out-of-state adoption, in order to prevent the legal
establishment of his own parental rights.
This Court has long
recognized that the rights of an unwed father are deserving of
Hayes v. Strauss, 151 Va. 136, 141, 144 S.E. 432,
The tort of tortious interference with parental
rights may provide one means of such protection.
hope that the threat of a civil action would help deter third
parties such as attorneys and adoption agencies from engaging
in the sort of actions alleged to have taken place.
For the aforementioned reasons, we answer the first
certified question in the affirmative, and we answer the second
certified question by referring the United States District
Court for the Eastern District of Virginia to Part II.D. of
Certified questions answered in the affirmative.
JUSTICE MIMS, dissenting.
I agree with the conclusion in Justice McClanahan's
dissent that the tort of interference with parental rights
arising from an unauthorized adoption does not currently exist
under Virginia law.
I believe that conclusion ends the
Consequently I would answer the first certified
question in the negative.
JUSTICE McCLANAHAN, with whom JUSTICE GOODWYN joins, dissenting.
While the facts as pled by Wyatt are unquestionably
disturbing, I cannot join the majority's effort to deter such
conduct by legislating public policy in Virginia through
I do not agree that the tort of interference with parental
rights arising from an unauthorized adoption currently exists
under Virginia law.
English common law prior to 1607 did not recognize a
cause of action in tort for interference with parental rights.
Under the law as stated in Barham v. Dennis, (1599) 78 Eng.
Rep. 1001 (K.B.); Cro. Eliz. 770, a father could only seek the
pecuniary loss of his heir's marriage prospects under an action
of trespass for the taking of his heir.
Such action was not
based on the protection of a parental relationship but on the
protection of a property interest. 2
As the majority of the
Court of King's Bench stated in Barham, "the father hath not
It cannot be disputed that "the relationship between a
parent and child is constitutionally protected by the Due
Process Clause of the Fourteenth Amendment." Copeland v. Todd,
282 Va. 183, 198, 715 S.E.2d 11, 19 (2011) (citing Quilloin v.
Walcott, 434 U.S. 246, 255 (1978)). But what follows from this
constitutionally protected interest is the principle that the
state cannot attempt to interfere with the natural parental
relationship absent a showing of unfitness, Quilloin, 434 U.S.
at 255, not that a private right of action exists against third
parties who seek to interfere with a parental relationship.
See also Troxel v. Granville, 530 U.S. 57, 67 (2000)
(visitation order was unconstitutional infringement by state on
fundamental parental rights).
Wyatt does not claim that E.Z. was physically taken from
him or ask this Court to recognize a cause of action in tort
for the abduction of a child. He claims McDermott prevented
him from establishing a parental relationship with E.Z. through
an unauthorized adoption.
any property or interest in the [child, not an heir], which the
law accounts may be taken from him."
at 770. 3
Id. at 1001; Cro. Eliz.
Although English common law later recognized an action
of trespass where a child old enough to do the father service
was taken, under such an action, "[t]he mere relationship of
the parties [was] not sufficient to constitute a loss of
Hall v. Hollander, (1825) 107 Eng. Rep. 1206 (K.B.)
1207; 4 Barn. & Cress. 660, 662. 4
Thus, even as late as 1825,
English common law did not recognize a cause of action grounded
in the parental relationship.
Furthermore, since adoption of
children was not recognized at common law and is entirely a
The majority concedes the English common law action of
trespass for taking of a child "is markedly different" from the
cause of action asserted by Wyatt and does not reflect modern
societal views on gender equality and the parental
relationship. Indeed, the majority does not adopt this ancient
writ but creates a new tort while simultaneously reasoning that
the Court is "obligated to enforce this tort as the law of the
Because the English action of trespass only provided
fathers with a cause of action for the loss of a property
interest in the heir's marriage, and later for the loss of
services, courts in New York and Florida repudiated the English
action of trespass in favor of a new cause of action in tort
for abduction of a child from the lawful custodian. See, e.g.,
Stone v. Wall, 734 So.2d 1038, 1044 (Fla. 1999) (court
reasoning that "outdated common law principles based on the
view that children are nothing more than the economic assets of
their parents" should be replaced with a tort that is "not
predicated on loss of services but on the sanctity of the
parent-child relationship"); Pickle v. Page, 169 N.E. 650, 653
(N.Y. 1930) (recognizing that while under Barham a father had
no remedy except for the taking of a son and heir, the court
would recognize a cause of action for abduction from a lawful
custodian "without resort to the fiction that a loss of service
has been occasioned").
creature of statute, Fletcher v. Flanary, 185 Va. 409, 411-12,
38 S.E.2d 433, 434 (1946), a cause of action premised upon the
unauthorized adoption of a child could not have existed under
English common law.
And, Code § 1-200 does not obligate this
Court to enforce a cause of action that did not exist prior to
Accordingly, since English common law as it existed in
1607 did not protect the parental relationship but only
protected the property rights of a father in his heir's
marriage, and since Virginia common law from that time forward
has not recognized a cause of action for interference with
parental rights, I cannot conclude that the cause of action
asserted by Wyatt currently exists in Virginia.
Commonwealth v. Morris, 281 Va. 70, 82, 705 S.E.2d 503, 508
(2011) (Our adoption of English common law "ends in 1607" and
"[f]rom that time forward, the common law we recognize is that
which has been developed in Virginia."). 5
I disagree that the tort of interference with parental
rights is analogous to our existing common law of tortious
interference. We have recognized a cause of action for
intentional interference with valid contractual relationships
or business expectancies based on the " 'right to reap profits
therefrom.' " Chaves v. Johnson, 230 Va. 112, 120, 335 S.E.2d
97, 102 (1985) (quoting Worrie v. Boze, 198 Va. 533, 536, 95
S.E.2d 192, 196 (1956)). Neither the interests protected, nor
the policy considerations involved, can be meaningfully
compared. Cf. Naccash v. Burger, 223 Va. 406, 413, 290 S.E.2d
825, 829 (1982) (whether scope of common law negligence
Because I do not believe the tort of interference with
parental rights currently exists in Virginia, the decision of
whether to create such a cause of action should be left to the
legislature in light of the competing and far-reaching public
policy considerations that are involved.
Bell v. Hudgins, 232
Va. 491, 495, 352 S.E.2d 332, 334 (1987).
See also Advanced
Towing Co., LLC v. Board of Supervisors, 280 Va. 187, 191, 694
S.E.2d 621, 623 (2010) ("[r]espect for the separation of the
powers of the legislative and judicial branches of government
is an essential element of our constitutional system"); Taylor
v. Worrell Enters., Inc., 242 Va. 219, 221, 409 S.E.2d 136,
137-38 (1991) (the principle of separation of powers "prevents
one branch from engaging in the functions of another, such as
the judicial branch performing a legislative function, or the
legislative branch taking on powers of a judicial nature")
When the question of whether to recognize
a new theory of liability involves a multitude of competing
which courts are ill-equipped to balance, . . . the
legislative machinery is specially geared to the
task. A legislative change in the law is initiated by
introduction of a bill which serves as public notice
to all concerned. The legislature serves as a forum
for witnesses representing interests directly
affected by the decision. The issue is tried and
tested in the crucible of public debate. The decision
doctrine encompasses medical malpractice action for wrongful
birth within the province of the judiciary).
reached by the chosen representatives of the people
reflects the will of the body politic. And when the
decision is likely to disrupt the historic balance of
competing values, its effective date can be postponed
to give the public time to make necessary
Bruce Farms, Inc. v. Coupe, 219 Va. 287, 293, 247 S.E.2d 400,
In creating an action for tortious interference with
parental rights arising from an unauthorized adoption, there
are many significant and varying interests that will be
The interests of the biological parents, the
adoptive parents, and the child 6 are impacted as well as the
legitimate interest in facilitating adoptions for those who
seek to place their child for adoption and for those who wish
to be adoptive parents.
The recognition of this new cause of
action also affects the operations and actions of adoption
agencies, adoption attorneys and other professionals or
governmental agencies involved in the adoption process, which
may be subject to liability.
Furthermore, the General Assembly
has already enacted specific provisions governing the rights of
the biological and adoptive parents. 7
Moreover, the factual and
The meaning of "the best interests of the child" is
different in the context of custody disputes than it is in the
context of adoptions since the biological parents' due process
rights in their relationship to their child must be considered.
Copeland, 282 Va. at 197, 715 S.E.2d at 19.
The Virginia General Assembly has enacted comprehensive
legislation governing the issues relating to parental rights,
legal determinations in a tort action may necessarily involve
the same factual and legal questions pending or already ruled
upon in the context of adoption or custody proceedings based on
the statutory provisions governing such proceedings.
sheer number of issues that can be raised in a debate of this
nature demonstrates the inadequacy of the judicial process to
balance these competing concerns."
Robinson v. Matt Mary
Moran, Inc., 259 Va. 412, 418, 525 S.E.2d 559, 563 (2000).
my view, the answers to the questions raised by these competing
policy interests "should come from the General Assembly and not
Bell, 232 Va. at 495, 352 S.E.2d at 334. 8
specifically including establishment of a parental
relationship, child custody, and adoption. See, e.g., Code
§ 20-49.1 (how parent and child relationship established); Code
§§ 20-49.2 et seq. (proceedings to determine parentage or
establish paternity); Code §§ 20-124.1 et seq. (custody and
visitation); Code §§ 63.2-1200 et seq. (adoption). The General
Assembly has also enacted legislation criminalizing certain
actions that may interfere with parental or custodial
relationships. See, e.g., Code § 18.2-47 (abduction and
kidnapping); Code § 18.2-49.1 (violation of court orders
regarding custody and visitation). The General Assembly has
not, however, enacted legislation imposing civil liability or
otherwise permitting the recovery of money damages for acts
that interfere with parental or custodial rights.
The majority has chosen to follow the decision of the
Supreme Court of West Virginia in Kessel v. Leavitt, 511 S.E.2d
720 (W.Va. 1998), recognizing tortious interference with
parental rights in the context of an unauthorized adoption.
The court in Kessel discussed at length the competing interests
of the various parties involved in the adoption process, noting
that there are several cases of national prominence involving
the "trampling" of a biological father's rights resulting in
the "wrenching of children from their adoptive families" and
that cases involving the placement of a child in another
We recently reaffirmed the principle that decisions
involving competing individual and societal interests fall
within the scope of legislative, not judicial, authority.
Bevel v. Commonwealth, 282 Va. 468, 479-80, 717 S.E.2d 789, 795
(2011) (if it is to be the policy in Virginia that a criminal
conviction will abate upon defendant's death while appeal is
pending, "the adoption of such a policy and the designation of
how and in what court such a determination should be made is
more appropriately decided by the legislature, not the
See also Uniwest Constr., Inc. v. Amtech Elevator
Servs., 280 Va. 428, 440, 699 S.E.2d 223, 229 (2010) ("The
jurisdiction are an "increasingly common . . . method by which
to thwart a biological father's parental rights." Id. at 82324. Recognizing that its decision was "not an appropriate
forum in which to dissect and repair all of the ailments of
existing adoption procedures," it nonetheless proceeded to
"redress, in part, the intentional deprivation of a biological
father's right to establish a relationship with his child,"
while simultaneously acknowledging that its legislature has
already taken action in that regard. Id. at 824. In fact, the
court conceded the scope of its decision may be limited by
legislative enactments. Id. at 756, n. 37. In my opinion, the
rationale espoused by the Kessel court does not support the
majority's creation of this new tort in Virginia. To the
contrary, it aptly illustrates the serious policy
considerations involved in determining the existence and scope
of such a cause of action. In the Commonwealth of Virginia, it
is not the role of the judiciary to weigh these competing
interests and adopt a policy of law that will best serve these
interests. It is the role of the legislature "to formulate
public policy, to strike the appropriate balance between
competing interests, and to devise standards for
implementation." Wood v. Board of Supervisors, 236 Va. 104,
115, 372 S.E.2d 611, 618 (1988).
public policy of the Commonwealth is determined by the General
Assembly [because] it is the responsibility of the legislature,
and not the judiciary, . . . to strike the appropriate balance
between competing interests.") (internal quotation marks and
Likewise, if public policy demands that
parties involved in the adoption process should be held liable
in tort for interference with parental rights, "this should be
accomplished, [I] think, by an appropriate act of the General
Assembly, and not by judicial pronouncement."
Robey, 170 Va. 55, 66, 195 S.E. 689, 693 (1938). 9
As the majority notes, a significant number of other
states have recognized a cause of action for intentional
interference with custodial rights based on the Restatement
(Second) of Torts § 700 (1977). That section, entitled
"Causing [a] Minor Child to Leave or not to Return Home[,]"
provides 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." Comment (c) to this section states
that it does not apply when parents are entitled to joint
custody and can only be brought by the parent with sole or
superior custody rights. Adopting or relying on this section,
these courts have recognized a cause of action for interference
with custodial rights in this context. But Wyatt does not seek
recognition of a cause of action for the taking of a child in
the context of a violation of a custody order in which he has
sole or superior lawful custody. Rather, he seeks recognition
of a cause of action for tortious interference with parental
rights arising from an unauthorized adoption. The only
decision cited by the majority recognizing a cause of action
for an unauthorized adoption is Kessel. Instead of weighing
the serious policy considerations impacted by creating a cause
of action arising from an unauthorized adoption as the court
did in Kessel, however, I would leave that task to the General
Accordingly, because I do not believe that Virginia
currently recognizes a cause of action for tortious
interference with parental rights arising from an unauthorized
adoption, and that the decision to recognize this tort in
Virginia should be made by the General Assembly, I would answer
certified question one in the negative.
Assembly, which bears the responsibility for formulating the
public policy of Virginia.