Interference with custody is a malignant tort. As a result, most jurisdictions have recognized liability for the underlying conduct through the common law or by statute. But the proper function of this legal theory requires balanced adjudication. When former spouses are cooperative, they usually act informally to adjust visitation, and a jurisdiction that applies the interference tort too broadly may discourage this desirable behavior. On the other hand, a jurisdiction that makes the tort too difficult to prove may encourage destructive conduct.
This Article considers two examples: cases from different states, with different results. A decision by the New Jersey Supreme Court shows appropriate adjudication of the tort. A case from the Texas Supreme Court exemplifies a cramped reading of the interference statute in that state.
This Article uses these two cases to explore appropriate and inappropriate adjudication of the interference tort. First, the tort requires a certain level of knowledge of the fact of interference, and knowledge usually requires proof by circumstantial evidence, which is to be reviewed in its totality. The New Jersey court follows this approach, but the Texas case does not. Second, the kind of knowledge required is important. Interfering parties may not have intimate recall of the entire visitation schedule, but if the situation shows that they must have known of the interference, this level of awareness should be enough to invoke liability. The New Jersey court follows this approach, but the Texas court, in spite of a statute that creates liability upon an awareness that interference is “likely,” has not. Furthermore, some jurisdictions publish visitation schedules as part of their law. All persons are presumed to know the law, but the Texas court has not followed this principle. Finally, the public is well aware of the incidence of interference with custody, including interference accomplished by false claims of child abuse. The Texas court has acted as though the population is unaware of this possibility.
Studies show that the harm caused by interference with custody is serious. It is important that the interference tort remain viable and provable when covered conduct occurs. This result, however, can only occur with sensitive adjudication by state supreme courts.
The Tort of Interference with Custody: A Tale of Two Jurisdictions,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol57/iss1/4