In Hixon v. Buchberger, 306 Md. 72 (1986), the Maryland Court of Appeals recognized intentional interference with a parent-child relationship as an independent tort in Maryland. In Khalifa v. Shannon, 404 Md. 107 (2008), the Court found that physical abduction would support such a claim, but stopped short of holding that this is a required element in every such case. In Haines v. Vogel (No. 1789, Sept. Term 2019) (Apr. 7, 2021), the Court of Special Appeals closed this loop. It found that “the conduct alleged must be intentional, beyond the pale, and result in the physical removal of a child before the case may proceed.” Id. at 18. Failure to allege each of these elements, the Court concluded, is fatal to the claim.
The plaintiff in Haines was a divorced father of two who alleged that his estranged wife engaged in a course of conduct that resulted in their children’s refusal to see him. He claimed that the children’s mother alienated them by communicating with them during visitation, encouraging them not to return his calls, and telling them about his threats to harm her. His complaint alleged that the mother’s conduct “had ‘deliberately and maliciously’ deprived him of his ‘custodial and/or visitation rights and has alienated the children’ from him such that a relationship with them was now ‘impossible.’” Id. at 3. The father requested trial by jury and damages to compensate him for the wrongs alleged.
The circuit court agreed with the mother, who argued that to be successful on such a tort claim, the father must allege a physical removal of the children that makes visitation impossible. The Court of Special Appeals agreed with the circuit court.
For background, the Court reviewed earlier cases and the Restatement (Second) of Torts (1977) (“Restatement”), and noted generally that these authorities recognize a need to distinguish behaviors that, while offensive, can be addressed by equitable remedies historically available to a judge when hearing family law cases (e.g., contempt or modification of a custody order) from actions that are serious enough to justify transforming a family court (equity) issue into a tort (law) claim to be resolved by a jury. In the view of the Court of Special Appeals, this interest is appropriately balanced by the bright-line it expressed in Haines.
To divine the elements of this tort, the Court looked first to Hixon, the Maryland primogenitor in this arena. In Hixon, a father alleged that the partner of his child’s mother tortiously interfered with visitation by threatening violence, making belligerent and hostile comments, and refusing to surrender him. Before taking issue with the trial court’s determination that Maryland does not recognize such a tort, the Court of Appeals looked to section 700 of the Restatement and its comment g, which together state:
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 [and] a custodial parent who suffers the tort [may] recover damages for the loss of society of the child, for emotional distress resulting from abduction or enticement, for loss of service, and for the reasonable expenses of regaining the child and in treating any harm suffered by the child as a result of the tortious conduct.
Haines, Slip Op. at 6, quoting Hixon, 306 Md. at 78 and Restatement, section 700.
The Hixon court observed that “a proper recognition of the interests of a parent who is awarded visitation rights includes recognition of a cause of action for damages for intentional interference with visitation rights.” Id. at 7, quoting Hixon, 306 Md. at 79. Looking at the facts before it, however, the Court of Appeals concluded that the words tossed about in Hixon were “so minor” that they simply did not constitute an interference with the father’s right to visitation. Id.
Pointing to the following passage, the Court of Special Appeals read Hixon to stand for the proposition that the subject tort requires physical removal rather than mere words:
[A] damage action for interference with the transfer of a child from custody to a visitation, or vice versa, based on words spoken, even if they are objectively hostile and belligerent, would not seem to be generally in the best interest of the child involved. Inevitably the defense in such cases will be that the claimed interference by speaking was really an effort to protect the child from some detriment. Such issues should be resolved by the chancellor as an adjunct to jurisdiction over the child and not by a jury in the context of awarding or withholding damages between litigating adults.
Id. at 8, quoting Hixon, 306 Md. at 83–84 (emphasis in original).
The Court looked next to its own pronouncement in Lapides v. Trabbic, 134 Md. App. 21 (2000), where again the mother’s new partner was alleged to have interfered with a plaintiff-father’s relationship with his child by intercepting telephone calls, making plans that conflicted with visitation, and encouraging insubordination. Citing section 699 of the Restatement—“[o]ne who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child’s parent”—and section 700, the Court concluded that “an actionable tort must be predicated on proof of acts other than the mere persuasion of a child to transfer its affection from its parent.” Haines, Slip Op. at 9, quoting Lapides, 134 Md. App. at 59. While the allegations in Lapides were serious, they were not enough to transform a family law matter into a tort case. Relying on Haines and cases from other jurisdictions, the Lapides court determined that “physical removal of the child from the custodial parent would be essential to such action.” Id. at 10, Lapides, 134 Md. App. at 63.
The Court concluded its review of Maryland precedent with a discussion of Khalifa, the only case in which the Court of Appeals has agreed with the trial judge’s decision to allow a tortious interference with visitation claim to proceed to trial. The mother in Khalifa took the children to Egypt after saying that she was taking them to New York. On appeal from a $3 million damages award in favor of the plaintiff-father, the Court of Appeals noted that tortious interference with custody and visitation rights is a direct descendent of early 20th century cases in Maryland and elsewhere that recognized a cause of action for harboring or abducting a child from a parent or anyone having custody. As Khalifa involved an actual abduction, the Court did not have to dwell on the nature of the conduct when allowing the jury verdict to stand and thus did not have to decide whether such conduct was essential to the cause of action. The Khalifa court did, however, distinguish physical removal from the country from the belligerent words used Hixon, noting that unlike Khalifa, “the conduct [in Hixon] did not describe conduct that was ‘outrageous’ and ‘so extreme, as to go beyond all possible bounds of decency.’” Id. at 12, quoting Khalifa, 404 Md. at 124 (quoting Hixon, 306 Md. at 77).
Putting this all together, the Court of Special Appeals concluded:
Consequently, we take from the holdings in Hixon, Lapides, and Khalifa, and the other authorities cited, that the basis of a tort claim for interference with custody and visitation, is that the conduct must be: (1) intentional, (2) outrageous, and (3) involve the physical removal and harboring of the child from the parent. . . . Further, while the level of outrageousness is not defined, we have for guidance the conduct of the mother in Khalifa, as an example of what the Court of Appeals has determined is “outrageous” and “extreme.” There, the mother intentionally deceived the father about where she was taking the children, and with her mother’s help, took the minor children to another country. Consequently, the requisite outrageous conduct cannot be merely words or acts that cause estrangement but conduct that results in the physical removal of the child from a parent.
Id. at 16–17.
While the Court characterizes its conclusion as “abundantly clear,” id. at 18, it did have to muddle through some turbid doctrinal waters before listing the elements of this tort. The Court of Appeals has not actually said that both “outrageous” conduct and “physical removal” are required to establish tortious interference with visitation or custody, although both were present in Khalifa and absent in Hixon. Moreover, section 700 of the Restatement suggests that one who “induces” or “entices” a child to leave a parent may also be liable in tort and thus might be read to include within its reach acts that fall short of physical interference. What if, for example, a father tells his child that her mother is deceased and tells the mother that the child’s therapist recommends that she stay away during a year of counseling? If false, these might qualify as outrageous but fall short of physical removal. Under the Court’s formulation in Haines, a chancellor could vindicate the interest of the court with its contempt power, but a jury would be precluded from compensating the mother for her loss. Whether this is what the Court of Appeals intends awaits clarification.