Making up a new cause of action for the Commonwealth

Today, the Virginia Supreme Court decided in Wyatt v. McDermott to recognize in response to a certified question a claim for "tortious interference with parental rights."

The context was a lawsuit by the father of a child against the lawyers who arranged for the adoption of the child by a couple in Utah, along with the new parents, and the agency that was involved with the adoption - everyone but the mother. The federal court certified to the Virginia Supreme Court two questions:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action?
2. If so, what are the elements of the cause of action, and what is the burden of proof of such a claim?

The Supreme Court answered yes, by a 4-3 vote with Justices Mims, McClanahan, and Goodwyn in dissent. Justice Millette wrote the opinion for the majority. The Court concluded: "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." The Court added: "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 parent-child relationship." The authorities cited in the majority and dissenting opinions show that both these propositions are debatable and have been debated.

The best thing that can be said for the opinion is the extent to which it closes the door on the use of this new-to-Virginia tort as a weapon between the parents themselves. "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." Even so, many of the cases cited were inter-familial claims.

The majority's conclusions about the state of the common law before 1607 bring to mind Judge Wilkinson's criticism of various schools of constitutional interpretation summarized in the recent George Will column. Whether the question is a matter of constitutional law or the common law, evidently it is a hard thing for smart justices confronted with injustice to say go across the street to the legislature.

The Court distinguishes the interest with parental rights from alienation of affections, barred by statute under Va. Code 8.01-220, with the idea that interference with parental rights means "that the offending party has removed parental or custodial authority from the complaining parent." The opinion does not cite McDermott v Reynolds, wherein the Court held that the statute barring actions for alienation of affections applied with equal measure to a claim for intentional infliction of emotional distress.

The district court denied the defendants' motions to dismiss based on fraud. Nevertheless, the Court found it necessary to recognize this "new" cause of action, claiming that there would be no fraud remedy in some cases. It is difficult to understand why this should be so, how innocent parents can be swindled out of their parental rights without some actionable misrepresentation or concealment that kept the parent from protesting against the adoption or whatever step was being taken to cause the loss of the parental rights. UPDATE: I didn't notice the first time through that Justice Goodwyn joined with Justice McClanahan in her dissent, which only adds to my view that she got it right in this case.