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Law - Family law - Alternatives to custody and visitation
interference
AAML Journal, Winter 1994, Volume 12, Number
2, p 271-284
publication of the American Academy of Matrimonial Lawyers
The potential for psychological and physical
damage to children of divorce and the parental relationship
looms as a potential harbinger of doom over every divorce
case. This specter becomes reality when one parent interferes
with the rights of custody or visitation of the other parent
by preventing the child from visiting the other parent, or
by kidnapping or secreting the child from the parent who has
the right to custody or visitation. This article will discuss
the visitation and custody interferences that occur during
divorce and alert practitioners and judges to the psychological
damage to the children. This article will review the alternative
remedies available to circumvent custody and visitation interference
and address the problems associated with enforcing these remedies.
This
examination will reveal that the available remedies lose effectiveness
proportionate to the severity of the interference with custody
and visitation rights. There are numerous types of visitation
and custody interferences that courts must address: modest
abuses related to timeliness and access for telephone contact
and visitation; issues of child protection when allegations
of
physical and sexual abuse occur, such as eliminating or limiting
contact with the other parent; and in the most severe cases,
loss of a relationship due to actions characterized as kidnapping.
In addition to these described interferences, more subtle
actions occur which create problems. Parents involved in serious
custody and visitation disputes frequently engage in programming
and brainwashing techniques directed at the child to the detriment
of the other parent, thereby interfering subtly or overtly
with the parent/child relationship.[1]
This behavior is frequently referred to as the
Parental Alienation Syndrome. Although such behavior is a
common occurrence, what is clear is that a dilemma exists
in cases involving brainwashing: risk to the child when a
change of custody is imposed for parental alienation syndrome
or programming cases may not be in the best interest of the
child; [2] yet the court may be powerless to stop the offending
contact from occurring.
Programming behaviors range from the simple
to the complex. They often begin with ignoring any discussion
of the other parent; speaking negatively about the parent
in front of the child; criticizing or attacking the parent's
lifestyle or character; not informing the other parent of
dates for the child's school
activities, plays, conferences and sporting events; ignoring
the other parent in front of the child; destroying or desecrating
photographs of the other parent or refusing to allow the child
to have a photograph of the parent in his/her room; speaking
to the child about issues that should be first discussed with
the other
parent; and using the child as a messenger. [3] More severe
techniques include attempting to get the child to side with
one parent against the other; instilling in the child the
belief that the other parent does not genuinely care for the
child; and communicating to the child he or she will suffer
rejection or loss of love from a parent if the child expresses
love or the desire to be with the other parent. The child,
either implicitly or explicitly, understands that to be loved
by one parent the child must turn against the other parent.
[4] The most severe methods of programming occur when the
programmer instills distrust, fear or the
belief that a parent is unable to properly care for the child
by initiating judgmental, opinionated and negative comments
or physical inspection and derogatory interrogation once the
child returns to the custodial parent. [5] The child then
interprets anything associated with the target parent as "wrong"
or "unsafe". [6]
Physical punishment may be added to this psychodramatic
interplay if the child fails to comply with the programmer.
[7] Any form of programming may be used alone, or in conjunction
with the other techniques, including the ultimate detachment
-- kidnapping. The programmer may experience a backlash effect
if the child is able to realize that the programmer has made
specific attempts to
intentionally and systematically sever the child's relationship
with the target parent. [8] While practitioners are told of
such a reaction, it is seldom seen; and when experienced,
it comes after years of abuse -- at an untold cost of emotional
destruction to the child. Even when practitioners admonish
their clients not to engage in such destructive behavior,
practitioners frequently lament their
clients' failure to follow attorney advice. A child who has
not been successfully brainwashed frequently harbors anger
and resentment toward both parents. [9] The child expresses
anger toward the brainwasher for behavior the child comprehends
is destructive to the child's relationship with the target
parent and toward the target parent for "giving up"
attempts to protect him or her through
greater custodial time [10], severing the visitation requirement,
or otherwise having the ability to control and prevent the
acts of abuse. The child's hope is that the target parent
will be strong and rescue the child from the programmer. Surprising
to many parents, very often the child does not want the target
parent to back off from "rescue" attempts.
Children often use denial as a coping mechanism,
and construct images of a fantasy relationship with the "lost"
target parent. [11] Children who become estranged from a parent
because of residential relocation or kidnapping and are subjected
to programming are at the greatest risk. Without residential
proximity and significant contact, children only receive input
from one parent and are more
susceptible to programming without any input or behavior by
the target parent to counteract the programmer. [12]
Furthermore, particularly if a child is denied
access to the mother figure at various developmental states,
the child may be unable to provide necessary attachment, as
some evidence points to a preferred attachment figure of most
babies to their mothers as opposed to their fathers or substitute
caregivers. [13] The motivation for the programmer's actions
are numerous. They include (1) self-
righteousness, (2) revenge, (3) fear of losing the child,
(4) sense of past history of more involvement, (5) proprietary
perspective, (6) jealousy, (7) child support, (8) loss of
identity, (9) out of sight, out of mind, (10) self-protection,
(11) maintaining the marital relationship through conflict,
and (12) power, influence,
control, and domination. [14] Programming parents show a diminished
capacity to parent as a result of their anger, depression,
and humiliations. The parents become preoccupied with their
own lives and are unable to provide emotional support to their
children. [15] Significant behavior problems may result from
the parent's brainwashing and inability to effectively parent.
Children suffer from a multitude of behavioral maladjustments
including anger, loss of impulse control, loss of self-confidence
and self-esteem, clinginess, separation anxiety, fears, and
phobias, depression and suicidal feelings, sleep disorders,
eating disorders, academic problems or radical fluctuations
in academics, enuresis, confusion,
daydreaming, drug abuse and other self-destructive behaviors,
peer group problems, obsessive-compulsive behavior, motor
tension, anxiety, psychosomatic disorders, damaged sexual
identity, desire to live with neither parent, rescuer role,
excessive guilt, and the desire to, or a retreat into fantasy.
[16] It is unfortunate that the most devastating effect of
divorce and custody disputes are these as described, inflicted
upon the innocent victims for whom the
parents profess love. Courts in all states have struggled
with ways to protect the right of access to each parent and
child. They now recognize a variety of causes of action and
remedies available to the parent whose custodial or visitation
rights have been interfered with by the other parent. [17]
The traditional "solutions" range from the mild
remedies of specifying exactly the time and place of visitation,
awarding make-up visitation, and family therapy or
mediation intervention to moderate remedies such as supervised
visitation, having a third party responsible for overseeing
visitation, loss of visitation, and an award of attorney's
fees. [18] More severe remedies include contempt proceedings
[19], change of custody [20], and a variety of tort actions
designed to redress the problem through coercive financial
compensation, rather than
modulating behavior through other means. There are also remedies
dealing exclusively with the problem of parental kidnapping.
[21] The appropriate remedy is directly proportional to the
extent of the interference, but unfortunately, even the most
severe remedy becomes ineffective when the interference is
prolonged and extensive. When a parent's bond with a child
is broken, even when the bond is not healthy, the child still
suffers all of the ramifications associated with loss: including
the feelings of anger, sadness, depression, powerlessness
and hurt.
Minor infractions in the custody or visitation
arena, such as the failure to return the child on a timely
basis, failure to make the child available for visitation
in a consistent manner, and limiting telephone contact with
the parent are susceptible to traditional remedies. The traditional
remedies for visitation or custody interference most frequently
involve petitions to the court requesting such relief as:
specification of time and place of visitation, make-up visitation
time, and family therapy or mediation. [22] These remedies
are mild in that there is no finding of contempt or action
on this charge, no fines or attorney's fees
imposed, and only involve making the existing visitation order
more specific than in its previous format. This remedy is
designed to rectify the skirmishes occurring over visitation
dates and times. When minor infractions escalate to include
such action as complete denial of visitation, denial of telephone
contact and destruction of the parent-child relationship through
severe brainwashing, then
additional relief must be afforded. When more severe intervention
is required, the parent whose right to custody or visitation
is being interfered with may request more significant relief
from the Court such as: supervision by a responsible third
party, transfers to occur at a neutral location, restrictions
or loss of visitation or
custody, attorneys' fees for the contemnor's contempt of court,
and in some states, withholding of child support as an additional
appropriate remedy. [23] However, most courts have held that
a non- custodial parent's visitation rights are independent
from the duty to make child support payments.[24]
In reality, these traditional remedies are often
inadequate and do not serve as a deterrent to custody or visitation
interference.[25] Although it may help the aggrieved parent
obtain access to the child, it may not circumvent the harm
to the child because the parent will continue to engage in
brainwashing techniques while reluctantly providing the former
spouse with access to the child.
Specifically, with regard to civil contempt, the fines may
be inadequate to cause any change in active access, let alone
changing subversive or subconscious behavior. In addition,
the relief is frequently denied because the Judgment or court
order inadequately defines the visitation which makes it difficult
for the court to find that there was direct wrongdoing by
one of the parents. Furthermore, such proceedings are time
consuming costly. This action also has a negative impact on
the children, [26] when the child may be forced to testify
in court, and is almost always subjected to the parents' anger
and hostility. [27] If relief is granted, it is difficult
to enforce and fails to compensate the non-custodial parent
for time loss or emotional distress. Finally, contempt rarely
deters future parental interference. [28] A parent who has
engaged in parental kidnapping may be subject to criminal
sanctions which can include restitution for costs incurred,
[29] and in severe cases, the aggrieved party may request
a change of custody as a remedy to visitation denial.[30]
Courts view change of custody as an extreme remedy which is
rarely warranted in denial of visitation
cases. The courts instead have determined that willful interference
with court ordered visitation cannot alone be the basis for
a change of custody; instead courts will evaluate the appropriateness
of custody modification based upon the best interests of the
child. [31] They most frequently prefer to maintain the status
quo and leave sole custody with the present custodial parent.
[32] Although these cases are difficult on both the parent
and child, change of
custody may be the only real counteraction to severe or complete
denial of one parent's access to the child and obstruction
of the parent/child relationship.
Severe psychological or physical interference
in the parenting relationship demands extreme remedies. Financial
coercion is used to deter kidnapping, repay expenses and compensate
for a loss that may never be truly rectified. The courts in
many jurisdictions have wrestled with the question of recognition
of a specific tort of interference with custody or visitation
rights, [33] or reliance on
traditional torts of emotional distress, false imprisonment
and/or the like. Those jurisdictions that have recognized
the specific tort of custodial interference have determined
that as with any tort, the petitioner must prove the elements
of a tort. First the parent suing for custodial interference
must possess a superior custody right to the other parent.
[34] This paradox often defeats the aggrieved
parent's rights, as a third party will not be held liable
for conspiring to interfere with a custodial relationship
where the parent had joint legal custody, [35] thereby eliminating
the ability to prove the first element of the tort. Second,
the interfering or abducting parent must be proven to have
intentionally interfered
with the other parent's right to custody of the child. [36]
Third, damages must be demonstrated and can include any emotional
or physical injury to the custodial parent; [37] the loss
of society and companionship of their minor child; [38] expenses
of locating and regaining custody of the child; [39] and the
injured parent is entitled to recover the value of the services
which would have been rendered by the child. [40] (This last
concept is often outdated in modern society where children
rarely apprentice in the parental workplace, forum, etc.)
Damages should also be awarded for the cost of the child's
medical and therapeutic care and treatment to obtain maximum
recovery from the traumatic separation and other events endured
during the secretion and separation. [41] Finally, punitive
damages should be awarded when, in kidnapping cases, the abducting
parent acted with a culpable state of mind and his/her acts
rose to
the level of malicious, outrageous, or wanton misconduct.
[42] Although many jurisdictions have recognized the tort
for intentional interference with custodial rights, several
courts have refused to recognize the tort due to public policy
reasons. [43] The court's primary concern was that recognition
of the tort would not be in the child's best interest because
the child may be forced to testify
against a parent he or she loves. These courts further determined
that creating a new tort would provide an additional weapon
to escalate intra-family hostility and would place innocent
children in the middle of a vigorous lawsuit between their
parents and potentially grandparents or other relatives. In
effect, there would be a re-litigation of the original custody
decision. [44] In non- custodial complainant cases, the court
will not recognize an action for intentional interference
with visitation. [45] However, a number of jurisdictions have
upheld a cause of action brought by a non- custodial parent
for interference with visitation rights under the theory of
intentional infliction of mental distress, [46] and at least
one court has recognized the tort of "interference with
visitation" without resorting to the more commonly accepted
"mental distress" theory. [47] In such causes of
actions, the courts have allowed both compensatory and punitive
damages.[48] However, the tort of intentional infliction of
emotional distress may be found inapplicable as against public
policy for the deprivation of
visitation rights by a custodial parent. Proper remedies may
be limited to contempt, enforcement of visitation provisions,
and possible change of custody when the actions are severe
and outrageous conduct such as the unilateral separation of
a child from his or her parent. [49] Strong arguments exist
for denying recovery for damages resulting from intentional
interference with visitation. A dissenting opinion in an Iowa
Supreme Court decision argues that
allowing monetary damages for interference with custody will
injure the child because the damage award comes either directly
or indirectly out of funds used to support the child. [50]
The non- custodial parent may be seeking a means of recovering
past due alimony or child support without genuine concern
for maintaining contact with the child. [51] The United States
Court of Appeals for
the Second Circuit recently held that whether or not the tort
of visitation interference would be recognized should be left
to the state court for its determination in light of the domestic
relations exception to federal jurisdiction. The court also
stated that the validity of the tort should be based on the
facts of each particular case. [52] Therefore, whether the
tort will be recognized will vary from state to state depending
on the facts of the case, particularly, the severity of the
interference.
A parent who has lost a child through kidnapping
suffers tremendously from its effects. It is particularly
traumatic when the child is secreted in another country. In
response to the problem of international kidnapping, an increasing
number of countries have become part of an international treaty
known as the Hague Convention on Civil Aspects of International
Child Abduction providing for the
return of a child wrongfully removed from one country to another.
[53] The intent of this treaty is "to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual residence."
[54] Under this treaty, a parent challenging the removal of
a child from another country to the United States has the
burden of showing by a preponderance of the evidence that
the removal was wrongful. [55] The burden then shifts to the
parent who currently has possession of the child to show that
there would be a risk that a return of the child to the other
parent would expose the child to physical or psychological
harm; that returning the child would be a violation of
human rights principles and fundamental freedoms; that the
action was commenced more than one year after the abduction;
or that the other parent was not actually exercising custody
at the time of the child's removal or had consented to, or
acquiesced in, the child's removal. [56]
The Hague Convention provides for the immediate
return of the child when the child has been found to have
been wrongfully removed and at the date of the commencement
of the proceedings a period of less than a year has elapsed
since the removal. [57] If a period of one year has elapsed,
the child is returned unless it is shown by the opponent that
the child is settled in a new environment. [58] The Hague
Convention also provides for payment by the parent who has
wrongfully removed the child for expenses incurred in implementing
the return of the child, including travel, any costs incurred
or payments made for locating the child, the costs of legal
representation of the applicant and those of returning the
child. [59]
Additionally, the federal legislature enacted
the Parental Kidnapping Prevention Act of 1980 (PKPA) in response
to interstate parental kidnapping and child custody litigation,
in large part as a result of the line of cases in which the
United States Supreme Court declined to rule that child custody
determinations are entitled to full, faith and credit by sister
state courts pursuant to Article
IV, Sec. 1 of the United States Constitution. [60] A major
purpose of the PKPA was to ensure that a state would enforce
the decrees validly made under the UCCJA, regardless of whether
or not that state had adopted the UCCJA. (All states have
now adopted the UCCJA.) [61] The PKPA basically provides that
once a state court properly exercises jurisdiction, no other
state may exercise
concurrent jurisdiction over a child custody case, and all
other states must afford full, faith and credit to the first
state's custody decree, unless the first state loses jurisdiction
for some reason enumerated in the Act or declines to exercise
continuing jurisdiction over the case. [62] The PKPA also
created an explicit preference for jurisdiction in the home
state of the child in an attempt to rectify one of the statutory
weaknesses of the UCCJA. [63] Under the PKPA, a state cannot
assert significant contacts jurisdiction unless there is no
state that meets the home state requirement. [64] The PKPA
enforces the UCCJA's requirement that only one state at a
time can validly exercise jurisdiction over a
custody determination. [65] Furthermore, where the PKPA conflicts
with a state child custody statute, many courts have held
that the PKPA controls because of federal preemption under
the Supremacy Clause. [66] Despite these available remedies,
however, the question remains as to whether they serve as
a deterrent and whether they adequately protect the interests
of the child. Even when criminal proceedings against an abducting
parent have been initiated, such
action should not be viewed as vindicating, securing or enforcing
rights to custody. The aggrieved parent should take action
in state court to obtain, modify, or enforce a custody or
visitation order. [67] The most tragic cases, of course, exist
when the child can not be located or is discovered in a foreign
country that is not a party to the Hague Convention.
There are some instances when the parent is
denied access to the child by a government agency when the
parent and child are forced to enter a witness protection
program not as a result of any intentional wrongdoing by the
parent. In these instances, the traditional remedies, tort
remedies, and kidnapping remedies are inapplicable. In these
line of cases involving witness protection
programs, the due process clause of the Fifth Amendment to
the Constitution has been used as the basis for a cause of
action against the government. [68] The argument is made in
these cases that a parent's relationship with his/her child
is a constitutionally protected right, although not expressly
set forth
in the constitution, drawn from the "liberty" protected
by the Due Process Clause of the Fifth Amendment. [69] In
order to succeed under this theory, the defendant's wrongful
conduct must be intentional and the plaintiff must suffer
compensable damages. [70] The courts have supported the rights
of the parent to maintain a relationship with his/her child
and have held that the government
can not infringe upon these rights without: affording the
parent requisite procedural protections; making a particularized
finding and showing of a legitimate interest to justify the
infringement; and availing itself of equally effective alternate
solutions to the problem before them that would have been
less restrictive of the parents' rights. [71] These cases
undeniably support the parents' rights but are in contrast
to intentional types of interferences
which result from a parent's conduct. These cases suggest
that rights are not absolute in that compelling public necessity
can justify terminating parental contact if proper procedures
are followed. In these cases, the court must weigh the parental
rights versus the danger to both the other parent and the
child. [72]
There are clear remedies which are now recognized
in an effort to alleviate the custody or visitation intervention
problems that occur when parents are undergoing a dissolution
of marriage. The most recent development has been the integration
of tort law into domestic relations actions through the recognition
of domestic torts. Courts have acknowledged the effects on
children and spouses
when there is hostility and anger which results in brainwashing
and visitation or custody interference. Judges play a crucial
role in these cases and it is important that they have an
understanding of the psychological impact of the divorce process
on the parents and children. In particular, they should ascertain
the level of parental alienation: whether it is severe, moderate,
or mild, in order to
make an appropriate ruling. [73] What is clear, unfortunately,
is that the remedies are not effective deterrents to the programming
and brainwashing in the severe cases when the parental alienation
cannot be undone.
1. Stanley S. Clawar & Brynne V. Rivlin,
Children Held Hostage: Dealing with Programmed and Brainwashed
Children,15 (1991).
2. Cheri L. Wood, Note, The Parental Alienation
Syndrome: A Dangerous Aura of Reliability, 27 Loy. L.A. L.
Rev. 1367, 1382 (1994).
3. Clawar & Rivlin, supra note 1, at 16
-24.
4. Id. at 23 -26.
5. Id. at 31.
6. Id.
7. Id. at 36.
8. Clawar & Rivlin, supra note 1, at 36.
9. Id. at 111.
1. Id. at 112.
11. Id. at 113.
12. Id. at 115.
13. Arlene Browand Huber, Children at Risk in
the Politics of Child Custody Suits: Acknowledging Their Needs
for Nurture, 32 U. Louisville J. Fam. L. 33, 53 (1993).
14. Clawar & Rivlin, supra, note 1 at 38.
15. Judith S. Wallerstein, The Child in the
Divorcing Family, 7 (1980).
16. Clawar & Rivlin, supra note 1, at 129.
17. Larson v. Dunn, 460 N.W.2d 39, 44 (Minn.
1990).
18. In re Marriage of Kramer, 570 N.E.2d 422,
431 (Ill. App. Ct. 991);Ingerwerson v. Woeckener, 490 N.E.2d
1008, 1010 (Ill. App. Ct. 1986).
19. Ford v. Ford, 700 P.2d 65 (Idaho 1985);
McGrady v. Rosenbaum, 308 N.Y.S.2d 181, 188 (N.Y. Sup. Ct.
1970), aff'd, 37 A.2d 917 (N.Y. App. Div. 1970).
20. Rosenberg v. Rosenberg, 504 A.2d 350 (Pa.
Super. Ct. 1986); Marriage of Ciganovich, 132 Cal. Rptr. 261
(Cal Ct. App. 1975).
21. See Juliet A. Cox, Note, Judicial Wandering
Through A Legislative Maze: Application of the Uniform Child
Custody Jurisdiction Act and the Parental Kidnapping Prevention
Act to Child Custody Determinations, 58 Mo. L. Rev. 427 (1993).
22. See Sue T. Bentch, Comment, Court-Sponsored
Custody Mediation to
Prevent Parental Kidnapping: A Disarmament Proposal, 18 St.
Mary's L.J. 361 (1986).
23. Lawrence A. Goldman, Tortious Interference
With Visitation Rights: A New and Important Remedy for Non-Custodial
Parents, 20 J. Marshall L. Rev. 307, 313 (1986).
24. Id.
25. Id. at 315.
26. Id. at 311.
27. Larson v. Dunn, 460 N.W.2d 39, 45 (Minn.
1990).
28. Id. at 311.
29. See, e.g., Vanness v. State, 605 N.E.2d
277 (Ind. Ct. App. 1992) (upholding father's felony conviction
for interference with custody for removing his daughter from
the state in violation of custody order).
30. English v. English, 469 A.2d 270 (Pa. Super.
Ct. 1983), Pamela J.K. v. Roger D.J., 419 A.2d 1301 (Pa. Super.
Ct. 1980), Ford v. Ford, 700 P.2d 65 (Idaho 1985), Entwistle
v. Entwistle, 402 N.Y.S.2d 213 (N.Y. App. Div. 1978).
31. Rosenberg v. Rosenberg, 504 A.2d 350, 353
(Pa.Super. Ct. 1986); English v. English, 419 A.2d at 1307.
See also Schmidt v.Schmidt, 591 S.W.2d 260, 262 (Mo. App.
1979), Spenser v. Spenser, 488 N.Y.S.2d 565 (N.Y. Fam. Ct.
1985); Clark v. Clark, 805 S.W.2d 290 (Mo. App. 1991); Snarski
v. Krincek, 538 A.2d1348 (Pa. Super. Ct. 1988) (visitation
interference was a factor in modification of
custody proceeding).
32. Goldman, supra note 23, at 312-313.
33. See Richard A. Campbell, Comment, The Tort
of Custodial Interference -- Toward a More Complete Remedy
to Parental Kidnappings, 1983 U. Ill. L. Rev. 229; Joseph
R. Hillibrand, Note, Parental Kidnapping and the Tort of Custodial
Interference: Not in a Child's Best Interests, 25 Ind. L.
Rev. 893 (1991).
34. Kajtazi v. Kajtazi, 488 F. Supp. 15, 18
(E.D.N.Y. 1978); Abdul- Rahman Omar Adra v. Clift, 195 F.
Supp. 857, 862-63 (D. Md. 1961); Politte v. Politte, 727 S.W.2d
198, 200 (Mo. App.1987), Spencer v. Terebelo, 373 So. 2d 200,
202 (La. App. 1979); Restatement (Second) of Torts s 700,
cmt. c (1976).
35. Marshak v. Marshak, 628 A.2d 964, 969 (Conn.1993).
36. Fenslage v. Dawkins, 629 F.2d 1107, 1108
(5th Cir.1980); Kajtazi at 17.
37. Loyd v. Loeffler, 518 F. Supp. 720, 725
(E.D. Wisc., 1981); 488 F. Supp. at 19; see also C. David
Bargamean, Note, Intentional Infliction of Emotional Distress
in the Child Custody Context: Proposed Guidelines, 36 Wayne
L. Rev. 125 (1989).
38. 488 F. Supp. at 19.
39. 518 F. Supp. at 720.
40. Fenslage v. Dawkins, 629 F.2d at 1109.
41. Id.
42. 518 F. Supp. at 493-4; 488 F. Supp. at 20;
Sanford N. Katz, Legal Remedies for Child Snatching, 15 Fam.L.Q.
103, 117 (1981-2); Note, The Tort of Custodial Interference
- Toward a More Complete Remedy to Parental Kidnappings, U.
Ill. Law Rev. 256 (1983).
43. Zaharias v. Gammill, 844 P.2d 137, 139 (Okla.
1992); Larson v. Dunn, 460 N.W.2d 39, 45 (Minn. App. 1990).
However, these decisions did acknowledge that there may be
a cause of action for intentional infliction of emotional
distress.
44. 460 N.W.2d at 45-46; 844 P.2d at 141.
45. Cosner v. Ridinger, 882 P.2d 1243 (Wyo.
1994); Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987);
Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985).
46. Bhama v. Bhama, 425 N.W.2d 733 (Mich. Ct.
App. 1988); Pankratz v. Willis, 744 P.2d 1182 (Ariz. Ct. App.
1987); Sheltra v. Smith, 392 A.2d 431 (Vt. 1978).
47. Ruffalo v. United States, 590 F.Supp. 706
(W.D. Mo., 1984).
48. Rafferty v. Scott, 756 F.2d 335 (4th Cir.
1985).
49. Pankratz v. Willis, 744 P.2d 1182, 1189
(Ariz. Ct. App.1987), citing Kajtazi v. Kajtazi, 488 F. Supp.
1520 (E.D.N.Y. 1978); Rafferty v. Scott, 756 F.2d 335 (4th
Cir.1985); Sheltra v. Smith, 392 A.2d 431 (Vt. 1978); Plante
v. Engel, 469 A.2d 1299 (N.H. 1983); Eller v. Eller, 524 N.Y.S.2d
93 (N.Y. App. Div. 1988); McGrady v. McGrady, 308 N.Y.S.2d
181, 182 (N.Y. Sup. Ct. 1970).
50. Wood v. Wood, 338 N.W.2d 123, 127-30 (Iowa
1983) (Wolle, J. dissenting).
51. Eve Kahao Gonzalez, Note, Intentional Interference
with Visitation Rights: Is This a Tort?: Owens v. Owens, 47
Louisiana L. Rev. 217 (Sept. 1985); 338 N.W.2d at 127-30 (Wolle,
J. dissenting).
52. Minot v. Eckardt-Minot, 13 F.3d 590, 594
(2d. Cir.1994).
53. In 1986 the United States ratified the Hague
Convention on the Civil Aspects of International Child Abduction
at the Hague Conference on Private International Law. Fourteenth
Session, October 25, 1980 (51 Fed Reg. 10,498 (1980)). Legislation
was enacted shortly thereafter as the International Child
Abduction Act, Pub. L. No. 100 -300 s 1, 102 Stat. 437 (1988)
(codified at 42 U.S.C. ss
11601-11610 (1988)). See also Philip Schwartz, Note, Getting
a Child Back, How the State Department Can Help, Fam. Advoc.,
Spring, 1993.
54. Hague Convention, supra note 53.
55. Friedrich v. Friedrich, 983 F.2d 1396 (6th
Cir. 1993).
56. Hague Convention, supra note 53, Articles
13 & 20.
57. Id., Article 12.
58. Id.
59. Id., Article 26.
60. 18 U.S.C. s 1738A (1985).
61. Linda M. Demeris, Note, Interstate Child
Custody and the Parental Kidnapping Prevention Act: The Continuing
Search for a National Standard, 45 Hastings L.J. 1329, 1336
(1994).
62. Id.
63. Id. at 1336.
64. Id.
65. Id.
66. Id. at 1340, see e.g., Alvarez v. Bressett,
433, 434 (Ala.Civ. App. 1991); Shute v. Shute, 607 A.2d 890,
893 (Vt. 1992).
67. 1 Lenore Kramer, Legal Rights of Children,
244-45 (2d ed. 1994).
68. Ruffalo v. Civiletti, 702 F.2d 710 (8th
Cir. 1983).
69. Id.
70. Id. at 709.
71. Franz v. United States, 707 F.2d 582, 586
(D.C. Cir.1983).
72. Id.; Ruffalo v. Civiletti, 702 F.2d 710
(8th Cir. 1983).
73. Richard A. Gardner, Family Evaluation in
Child Custody Mediation, Arbitration, and Litigation, 496
(1989).
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Joy M. Feinberg is a partner in the Chicago
matrimonial law firm of Feinberg & Barry, P.C.
Lori S. Loeb is an attorney in private
practice in Chicago, Illinois.
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