Virginia: Tortious Interference – a Lawyer’s Child

Virginia: Tortious Interference – a Lawyer’s Child

On April 20, 2012, the Virginia Supreme Court split 4-3 in a case of first impression, recognizing as a civil cause of action “tortious interference with parental or custodial rights”. That special caseWyatt v. McDermott, 283 Va. 685 (2012), was “upon questions of law certified by the United States District Court for the Eastern District of Virginia”.

Wyatt delineated a 4-prong test for a prima facie cause of action. Id.*19. In this special case it also identified at least two specific affirmative defenses: (1) “substantially equal rights”; and (2) “reasonable, good faith belief”. Id.*21-24.

Wyatt concluded that “this common law tort encompasses both tangible and intangible damages, including compensatory damages for the expenses incurred in seeking recovery of the child, lost services, lost companionship, and mental anguish.” Id.*20. Further, although injunction and custody orders cannot be awarded in suchspecial cases, if a tortfeasor’s tort was intentional rather than negligent, i.e., deliberately committed with intent to harm the victim… and if the evidence is sufficient to support an award of compensatory damages, the victim’s right to punitive damages and the quantum thereof are jury questions.” Id.