One challenge we eagerly accept every day is interpreting complex case law for our clients. These blogs exist to educate the many Virginia men in need of wise counsel. Consider this mouthful: tortious interference with parental rights. Stay with us now, as we head deep into the weeds.

Words, Words, Words

We will roll out the exact case in just a bit, but to step off the clear path into those legal weeds, we need to understand some terminology:

  • Tortious — Constituting a tort; wrongful
  • Tort — A wrongful act or an infringement of a right
  • Tortious interference — a common law tort allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff’s contractual or business relationships
  • Common law — law derived from historical custom including judicial decisions instead of purely from statutes

Now let’s march on! In 2012, Virginia’s Supreme Court ruled in a case, Wyatt v. McDermott, that Virginia recognizes the right of citizens to sue for “tortious interference with parental rights,” or TIPR.

Wyatt v. McDermott

While you can read all 34 pages of the entire Supreme Court of Virginia ruling for yourself, here is our pecan shell-sized summary:

An unmarried Virginia woman, Colleen Fahland, allegedly conspired with attorneys hired by her parents, a Utah adoption agency, and a Utah couple to place her newborn child up for adoption without the knowledge or consent of the child’s Virginia father, John Wyatt.

Colleen lied about several things: the child’s birth, John’s legal rights as father, John’s legal address, and the eventual placement of the baby. John sued the Utah folks, the attorneys (including lawyer Mark McDermott, the other party named in the lawsuit), and the agency for tortiously interfering with his parental rights.

The Supreme Court of Virginia had to decide if this tort (wrongful act) exists in Virginia. Noting that no statute (law passed by the legislature) provided the answer, the court recognized that the parent-child relationship is a constitutionally protected and valuable right, based on common law.

We often joke about legal writing as the stuff of beddy-bye time, but this case is rich with profound consequence and compelling legal writing. Though no legislature created a law about TIPR, the Supreme Court of Virginia now has confirmed the rights are protected under Common Law. Claims of TIPR protect fundamental, decent values that must be upheld by a civilized society and so are permitted in Virginia.

The ruling not only upholds the right of a parent to sue for TIPR, it also lays out conditions creating TIPR:

  • The complainant, usually the injured parent, has a right to establish or maintain a parental or custodial relationship with his/her minor child, but
  • A party outside of the parent-child relationship willfully, 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 preventing the complaining parent from exercising his/her parental or custodial rights; and so
  • That outside party’s intentional interference caused harm to the parent-child relationship; and
  • Damages resulted from that interference by the other party

Your attorney must prove all four of these conditions for a lawsuit for TIPR to be successful. A good family law attorney can help you to establish the legitimacy of your parental relationship to a child, and then go on to provide other help:

  • Your attorney can sue for compensatory damages, based on money you as the complaining parent lost establishing parental rights, plus punitive damages in the right circumstances
  • Your attorney can clarify to you that no injunctive action is possible, meaning a court cannot use the TIPR lawsuit to grant custody or undo the actions that led to your parental rights being infringed

Defending Yourself Against a TIPR Lawsuit

You may find yourself on the other side of a TIPR lawsuit, having to defend your actions against a complaining parent. In that situation, your family law attorney is ideally positioned to use two defenses mentioned in the Supreme Court of Virginia’s ruling (and here we quote directly):

  1. Thus, we conclude that a defendant may raise an affirmative defense of “substantially equal rights,” … as it is to the advantage of all parties that such a determination be made early in the proceedings.
  2. a party should not be held liable if he or she possessed a reasonable, good faith belief that interference with the parent’s parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm[; or] possessed a reasonable, good faith belief that the interference was proper (i.e., no notice or knowledge of an original or superseding judicial decree awarding parental or custodial rights to complaining parent); or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child (i.e., mistake as to identity of child’s biological parents where paternity has not yet been formally established).

In Wyatt v. McDermott, attorney McDermott was the principal named party, ahead of Fahland, her parents, the adoption agency, and others. McDermott actively misled the court and directed his client to falsify adoption records which are designed to help protect father’s rights and avoid these rights being violated. As a Virginia attorney, his deliberate lies created possible liability for tortious interference of parental rights. Fahland’s willingness to go along with the scheme and not respect Wyatt’s rights created the possibility for her liability.

Contact Our Custody Attorneys for Dads

Lost in the weeds? The Firm For Men can help! We are a team of highly skilled attorneys dedicated to assisting Virginia’s men in all aspects of family law. We provide ethical, zealous, rigorous representation. Contact us today, or telephone our offices at (757) 383-9184 to learn more about our dedication to protecting the rights of all Virginians.