Tortious Interference of Visitation

IV. INTERFERENCE WITH VISITATION Following a divorce, it is often the case that the noncustodial parent's only connection with his or her child is the right to visitation. Thus, a denial of visitation for any substantial period of time could work to remove the noncustodial parent from even the memory of the young child. For this and other reasons, some courts have recognized the tort of interference with visitation rights, or intentional infliction of emotional distress, when the custodial parent or others interfere with the noncustodial parent's right to visitation. One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife's parents took the wife and the children to the wife's parents' home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband's visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed. The Ohio Court of Appeals first held that, pursuant to a statute in Ohio, the defendants could be held liable for interference with visitation. 594 N.E.2d at 1011-12. Next, the court held that the maternal grandparents could be held liable for the common-law tort of intentional infliction of emotional distress for their interference with the husband's custody rights. Interestingly, the only fact cited by the court for its decision that the maternal grandparents could be held liable by a jury for intentional infliction of emotional distress was that the grandparents "decided to support their daughter in her decision to violate a visitation order issued by a domestic relations court, and thereby to frustrate [the husband's] desire to enjoy his visitation rights." Id. at 1012. Thus, even without other facts that indicate "outrageousness," if a person simply promotes the violation of a visitation order, he may be held liable for intentional infliction of emotional distress in Ohio. See also Ruffalo v. United States, 590 F. Supp. 70 (W.D. Mo. 1984) (federal government was liable for interfering with the mother's visitation rights by discouraging the father, who was in the federal Witness Protection Program, from allowing the mother to visit with the child). But see R.J. v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991) (father could maintain no action for intentional infliction of emotional distress against the wife). In contrast to the decision in Ohio, most other courts that have determined that the defendant could be held liable for violating the noncustodial parent's right to visitation have determined that the defendant could only be subject to liability if he has concealed the child for a long period of time or has committed some other egregious act. For example, the maternal grandparents were held liable for intentional infliction of emotional distress after they assisted their daughter's attempt to completely disappear with the child in Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (1987). In Pankratz, the wife married the husband in 1979. Shortly thereafter, the marriage produced a daughter. In 1981 and 1982, the husband and wife engaged in a protracted custody battle. In December 1982, the wife was awarded custody of the minor child, and the husband was awarded visitation. However, the tensions between the former spouses continued. In 1983, while the wife and the child were at a motel near Disneyland, the wife called her parents and informed them that she would not return home. Subsequently, the wife and the child disappeared, and had not been located at the time the husband filed a civil action against the maternal grandparents. In his complaint, the husband alleged that the wife was financially and emotionally dependent on her parents, and that the parents had enabled the wife and child to completely disappear, causing him extreme emotional distress. The husband noted that the wife had never supported herself, the grandparents paid the wife's attorney's fees for the divorce proceeding, the wife resided with the grandparents during the separation, the wife deposited all of her funds into her parents' checking account, and the wife had called her parents from Geneva, Switzerland around the time that she disappeared. In fact, the wife had called her parents seven times since the day she disappeared with the child. In addition, the husb read more...and presented evidence that he had suffered emotional distress following the disappearance. 744 P.2d at 1186. Based upon this evidence, the trial court let stand a jury award of $125,000 against the maternal grandparents, and the grandparents appealed. On appeal to the Court of Appeals of Arizona, the grandparents alleged that they had not intentionally or recklessly committed outrageous acts, and that the husband had not suffered distress. However, the court of appeals held that the jury could have reasonably found the defendants liable. The wife was completely dependent upon her parents for financial resources, and, thus, the jury could have concluded that the grandparents financially assisted in the disappearance. Also, the evidence indicated that the grandfather was hostile to the husband and encouraged the wife to disappear. The court concluded that these facts indicated that the grandparents had intentionally committed outrageous acts. Id.at 1189. Because the evidence also indicated that the husband had suffered emotional distress as a result of the grandparents' conduct, the decision by the trial court to award damages to the husband was affirmed. Thus, if a defendant assists in the complete disappearance of the child, he may be held liable to a parent who has visitation rights for intentional infliction of emotional distress. In addition, a custodial parent could be held liable for the creation of a negative relationship between the noncustodial parent and the child. The court reached this conclusion in Bhama v. Bhama, 169 Mich. App. 73, 425 N.W.2d 733 (1988). In Bhama, the parties were divorced in 1977. The wife was awarded custody of the parties' children. In 1982, this decree was modified, and the court awarded custody to the husband. In 1986, the wife filed a claim for intentional infliction of emotional distress, alleging that the husband had used his psychiatric training in order to "`systematically manipulate, instigate, involuntarily convert, intimidate, indoctrinate and brainwash the minor children into totally rejecting' her to `the point of extreme antagonism and instilled hatred.'" 425 N.W.2d at 734. The trial court ruled for the husband, concluding that "the creation of negative relationships does not amount to outrageous conduct." Id. The wife appealed. On appeal, the decision by the trial court to summarily dismiss the wife's claim for intentional infliction of emotional distress was overruled. In entering this decision, the Court of Appeals of Michigan concluded that the "abuse of a relationship" could be considered outrageous conduct which would justify an award to the wife. Id. at 736. Thus, if the custodial parent manipulates a child in order to create a negative relationship between the noncustodial parent and the child, the custodial parent could be held liable for intentional infliction of emotional distress. See also Raferty v. Scott, 756 F.2d 335 (4th Cir. 1985) (wife was liable for intentional infliction of emotional distress where she successfully destroyed the relationship between the husband and the child); Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991) (custodial parent could be held liable where she prevented the father from visiting with the child for many years). Although some courts have held that defendants could be held liable for interfering with visitation or creating a negative relationship between the noncustodial parent and the child, other courts have simply refused to recognize claims by parents who only have rights to visitation. One recent case where the court refused to recognize any claim by the noncustodial parent was Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994). In Cosner, the wife gave birth to a child in 1980. The husband and wife divorced in 1982. Pursuant to the divorce decree, the wife was awarded custody of the child, and the husband was granted visitation rights. In March 1993, the husband filed a claim against the wife and other third parties, alleging that they had intentionally interfered with his