This article is a Quick Answer Page on Interference with Child Custody, provided by Andrew Douglas, P.A.
What is Interference with Child Custody in Florida?
How do I prove an Inference with Child Custody claim in Florida?
What are the elements of a claim for Inference with Child Custody in Florida?
The most recent version, Restatement of Torts (Second) §700 (1977), provides the common law cause of action with its contemporary definition:
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 its twentieth-century form, the action may be brought by either parent, and loss of services is no longer always a predicate to recovery. See, e.g., Pickle, 169 N.E. at 479–82; Keeton, supra, §124. This more modern view recognizes that the tort serves to protect the parent-child relationship. See Keeton, supra, §124, at 924–25.
The elements of the cause of action include that the plaintiff had superior custody rights to the child and that the defendant intentionally interfered with those rights. See Restatement (Second) of Torts, §700 cmt. c. The Supreme Court of West Virginia recently elaborated on the elements by holding that a prima facie case for tortious interference requires a showing that:
(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.
Kessel v. Leavitt, 511 S.E.2d 720, 765–66 (W. Va. 1998), cert. denied, 119 S.Ct. 1035 (1999). Similarly, the Alabama Supreme Court has held that:
To state a claim of intentional or malicious custodial interference, a plaintiff need only plead facts tending to show:
“(1) [S]ome active or affirmative effort by [the] defendant to detract the child from the parent’s custody or service, (2) [that] the enticing or harboring [was] willful, [and] (3) [that the enticing or harboring was done] with notice or knowledge that the child had a parent whose rights were thereby invaded.”
Anonymous v. Anonymous, 672 So.2d 787, 790 (Ala. 1995) (quoting 67A C.J.S. Parent & Child §131 (1978)). SEE
Stone v. Wall, 734 So.2d 1038 (Fla. 1999) (See subsequent history at 188 F.3d 1293 (11th Cir. 1999)).
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