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Missing the mark: Alienation of affections as an attempt to address parental alienation in South Dakota.

In the 1991 case of Hershey v. Hershey, the South Dakota Supreme Court recognized that the tort of alienation of a child's affections was a viable cause of action under the state's alienation statute. Other jurisdictions that do not have the tort statutorily in place have judicially refused it for a multitude of reasons. Despite this, South Dakota has chosen to become one of only two states to allow alienation of a child's affections. South Dakota legislators should move to repeal the relevant statutory language. Enforcement of this tort is an ineffective means to combat parental alienation and encourages multiple levels of unnecessary litigation. Furthermore, it does not promote the best interests of the child and is derived from the dying tort of alienation of affections. Instead, the legislature and judiciary should revisit the remedies found in family law and other presently-existing torts to hone the sharpest weapons for fighting parental alienation.

I. INTRODUCTION
You hurt me a lot... I had to go through all that pain and stress...
[.] You really need to leave me and Dad alone. I look out for daddy a
lot just like he does for me. I wish I was the parent you were the
child. I love daddy a lot so you NEED TO STAY AWAY!!! I'm already mad
at you loser. Bye-bye big smelly fat baby butt. YOU SUCK! (1)


The unhappy truth of marital separation or divorce is that kids often get caught in the cross fire of their parents' war. (2) Custody battles, arguments over visitation rights, and the daily struggle of dealing with the disruption of the family unit all take a toll on adolescents. (3) When asked about how a parental split affected them, children reported that they acted out in school, increased their responsibilities in the household, felt the financial strain placed upon the custodial parent, and rebelled against the change. (4) Other negatives effects of separation or divorce include: decreased personal skills; greater probability of not completing school, or seeing a decline in mathematical skills; a higher likelihood to commit crime; and severe health problems such as substance abuse, stroke, or early death. (5)

The excerpt from the letter above is an example of the toxic effects of a particular byproduct of divorce and separation: parental alienation. (6) Parental alienation encompasses a broad array of behaviors by one parent that disturbs the relationship between the child and the other parent. (7) In Marko v. Marko, the mother's daughter wrote the letter while in the company of her father's girlfriend, who had "essentially assumed the role of a stepmother to the Marko children." (8) The court found that the girlfriend "had an unhealthy friendship with ten-year-old Ashley," and that she "challenged [the mother's] parenting, undermining her authority and responsibility." (9)

Parental alienation occurs in an estimated 11-15% of divorces involving children, and studies show that this figure is rising. (10) Other studies suggest that about 1% of American youth experience parental alienation. (11) This statistic is staggering when one considers that America's 2015 population included 73,645, 111 children under the age of eighteen. (12)

In response to growing concerns, courts have attempted to address parental alienation in a variety of ways. (13) The traditional strategy has been to tackle the problem in family court, frequently in the context of disputes about custody or visitation rights. (14) In recent years, general tort law remedies have been considered as another potential solution. (15) One such tort law remedy that many courts considered stems from a claim of alienation of a child's affections, which allows one parent to bring an action against the other parent or a third party who has deprived the complaining parent of his or her child's affections. (16)

South Dakota has judicially recognized alienation of a child's affections since the 1991 case of Hershey v. Hershey. (17) In Hershey, the court explained that the state's alienation statute provided the tort with a statutory basis. (18) South Dakota has had a codified alienation statute since 1877, and it provides a means to protect an individual's right to personal relations. (19) Since adoption of the South Dakota Codified Laws in 1939, the statute has only been amended once. (20) This minimal revision, however, did not alter the pertinent statutory language that allows parents and guardians to bring claims for alienation of a child's affections. (21)

This comment advocates for legislative abolishment of alienation of a child's affections through elimination of section 20-9-7, subsection (2) of South Dakota Codified Law. The position against this provision is based on the following: (1) the action lacks precedent; (2) excessive litigation may result if the tort continues to be recognized; (3) the elements of the action are derived from the heavily-criticized tort of alienation of affections; (4) fraudulent, extortionary use among family members is possible; (5) the action ineffectively combats parental alienation; and (6) other torts could be utilized to address the related wrongs. (22) This comment will first review the history of the tort, beginning with a brief overview of its "parent" tort, alienation of affections. (23) Second, this comment will discuss reasons for rejecting alienation of a child's affections by explaining the arguments against similar claims. (24) Finally, this comment will argue that this cause of action "misses the mark" in the fight against parental alienation and should be abolished in South Dakota. (25)

II. ALIENATION OF A CHILD'S AFFECTIONS' ANCESTOR: ALIENATION OF AFFECTIONS

Alienation of affections has existed as a civil action since the eighteenth century. (26) This is due to the treatment of adultery by earlier civilizations. (27) Ancient societies did not take kindly to infidelity; the usual punishment varied from fines to being devoured by dogs. (28) In fact, men of the Teutonic tribes had the right to kill their wives' lovers if caught in the adulterous act. (29) A justification for such remedies was that the legitimacy of bloodlines played a significant role in ancient times. (30)

Perturbed by this brutality, the Anglo-Saxons developed two causes of action to address tortious interference with a marital relationship: seduction and enticement. (31) These torts were meant to protect the rights of husbands and fathers to "the chastity of their wives and daughters." (32) Seduction has since then evolved into what is now criminal conversation, while enticement thereafter became the modern-day alienation of affections. (33) Though the Anglo-Saxons developed the predecessor of alienation of affections, they did not come up with its name. (34) Enticement was not called "alienation of affections" until a New York court took up the title in 1866. (35) Almost all jurisdictions eventually followed suit and recognized the action. (36)

Despite that enticement was sporting a new name, the right to bring an alienation of affections action still belonged only to men. (37) It was not until passage of the Married Women's Property Act in the late nineteenth and early twentieth centuries that wives were allowed to demand compensation from their husbands' mistresses. (38) This legal equality between the sexes resulted in the abandonment of alienation of affections' former justifications and the adoption of a new rationale. (39) Consequently, courts began to praise the tort for protecting the sanctity of marriage, painting defendants as malicious seducers whose interference in the spousal relationship warranted punishment. (40)

Positive fervor with alienation of affections began to decline in the latter half of the twentieth century; by its end, most states had eliminated this cause of action. (41) Court reasoning for this rejection varied with some courts holding that the tort failed to preserve marital relations and the family unit. (42) Other courts disparaged alienation of affections due to its basis on antiquated notions. (43) Courts also feared potential suits based on blackmail or extortion being brought under the action. (44) Public disinterest in alienation of affections and other heart balm torts was another propagation for abrogation. (45) Finally, courts pointed to public policy and the difficulties in determining appropriate damages for such suits to justify abolishment. (46)

To date, six states have judicially abolished alienation of affections on some or all of these grounds. (47) More significantly, thirty-six states and the District of Columbia have statutorily abrogated alienation of affections. (48) This has not occurred in South Dakota, where the tort lives on. (49)

South Dakota is one of six states that still allows actions for alienation of affections in its courts. (50) The first recorded judicial recognition of the common law doctrine of alienation of affections in South Dakota was in the 1915 case of Maiden v. Boyd. (51) Since then, only seven cases involving the cause of action have been brought in front of the South Dakota Supreme Court for review. (52) The court had an opportunity to abolish the tort in 1981, along with criminal conversation, but three concurring justices allowed for its preservation. (53) Thus, the alienation statute remained a viable ground upon which alienation of a child's affections could be based. (54)

III. ALIENATION OF AFFECTIONS' LOVE-CHILD: ALIENATION OF A CHILD'S AFFECTIONS

Given alienation of affections' beginnings in the amorous scandals between husbands and wives, it may seem strange that this cause of action would serve as the "parent" tort for what came to be known as alienation of a child's affections. (55) Perhaps the more accurate explanation of the relationship between the two torts is that alienation of a child's affections utilized the framework of its predecessor. (56) The origins of the two torts are different--one deriving from common law and the other not. (57) There are, however, critical similarities between the torts, particularly the elements and the judicial arguments both inspired. (58) Thus, the development of alienation of a child's affections owed much to legislative and judiciary interpretations of alienation of affections. (59)

A. THE BIRTH OF ALIENATION OF A CHILD'S AFFECTIONS

Unlike spousal alienation, there was no common law right for alienation of a child's affections. (60) Common law did, however, recognize a father's action of trespass for abduction of his eldest son and heir. (61) This right was justified by a property interest; the (hopefully advantageous) marriage of the heir was considered as belonging to the father. (62) The scope of the right later expanded to allow actions for abduction of any of a father's minor children per quod servitium amisit--meaning a child's familial status in relation to his father was equivalent to that of a servant to his master. (63) Thus, the action was permitted when the father could prove loss of the child's monetary services or wages (which also belonged to the father). (64) Any rights of the children were held by the father as master of the house. (65)

Alienation of a child s affections is distinct from this common law right. (66) Its development coincided with an issue often brought up in child custody disputes: parental alienation. (67) Like the "jilted lover" archetype of spousal alienation and other heart balm torts, alienated parents began looking to tort law for compensation from wrongs done to them in a way that family law did not. (68) Faced with this phenomenon, civil courts tried to fit parental alienation cases into the scope of existing tort law, including alienation of affections. (69) Within this attempted marriage between parental alienation and alienation of affections, alienation of a child's affections began to appear in court opinions. (70)

B. ALIENATION OF A CHILD'S AFFECTIONS IN SOUTH DAKOTA

The South Dakota Supreme Court recognized that the alienation statute included a cause of action for alienation of a child's affections in Hershey v. Hershey. (71) In Hershey, the couple's divorce decree awarded the mother custody of the son, and the father failed to pay his monthly child support. (72) The case appeared before the supreme court when the mother appealed a six-year limitation on her recovery of back child support from the father. (73) The father also appealed the dismissal of his counterclaim for tortious interference with his relationship with his son. (74)

Following the divorce decree, the mother moved the son to Nebraska and then to Arizona. (75) After the father litigated his custody and visitation rights, the mother abruptly left Arizona and failed to inform the father of where she and the son were living. (76) For fourteen years, the father had no knowledge of his son's location. (77) The mother subsequently filed for an order to show cause hearing to establish why the father should not pay over $30,000 in arrearage. (78) The trial court imposed the limitation on the mother's recovery and dismissed the father's counterclaim on the ground that it failed to state a valid cause of action. (79)

On review, the South Dakota Supreme Court remanded the limitation order and upheld the counterclaim dismissal. (80) Notably, the court held that the father had a viable cause of action for alienation of his son's affections. (81) Citing South Dakota's alienation statute, the court held that the tort was statutorily secured. (82) The court then utilized the elements of spousal alienation to explain alienation of a child's affections. (83)

C. ELEMENTS OF ALIENATION OF A CHILD'S AFFECTIONS

In identifying the elements of alienation of a child's affections, the Hershey court pointed to South Dakota's elements for alienation of affections. (84) Those elements include: "(1) wrongful conduct of the defendant; (2) loss of affection...; and (3) a causal connection between such conduct and loss." (85)

1. Defendant's Wrongful Conduct

Wrongful conduct requires a showing of specific intent on the part of the defendant to alienate a child's affections from a parent or guardian. (86) It is not enough to merely show that a child has taken a liking to the defendant, absent proof that the defendant's conduct intentionally alienated the child from the parent. (87) A defendant's belief that the child's parents are abusive may also render moot any accusation that the defendant's conduct was "wrongful." (88)

The wrongful conduct standard was first recognized by the court in the 1956 alienation of affections case of Pearsall v. Colgan. (89) This case tells the tragic tale of a soldier who came home after serving in Korea to find that his wife had given birth to another man's child and wanted a divorce. (90) In recognizing that the tort required specific intent to be shown, the court held that the heartbroken soldier presented sufficient evidence to submit the alienation of affections question to the jury. (91) The general rule in Pearsall was that actual intent to alienate a spouse's affections "need not necessarily be shown if defendant's conduct is inherently wrong and tends to, and does, have that effect." (92)

The Pearsall court held that the defendant must be the aggressor, as recovery on the tort claim is predicated on evidence sufficient to prove that the defendant's "active and direct interference" alienated the spouse's affections. (93) In applying this concept to alienation of a child's affections, keeping a child away from a parent for fourteen years, as an example, constitutes an aggressive, wrongful conduct that directly interferes with the parent-child relationship. (94)

2. Loss of Affection

Affection must be present between a parent and the child to support an alienation of a child's affections claim. (95) In MacKintosh v. Carter, the parents of a minor son contended that his affections had been alienated by the actions of the son's girlfriend's parents. (96) The son's parents claimed that the girlfriend's parents had "interfered with their attempts to discipline [their son], wrongfully asserted influence over him, and enticed him from their home." (97) The court found there was little to no affection between the son and his parents, making it unnecessary to address whether alienation of a child's affections constituted a valid cause of action. (98)

Loss of affections is the counterpart to the consortium element in alienation of affections claims. (99) South Dakota has defined consortium as "the right of either spouse to the society, companionship, conjugal affections, and assistance of the other." (100) Loss of affections must be objectively manifested. (101) The absence of affection between spouses means that an alienation of affections action will not lie against a third party. (102) Spousal affection can be inferred from things like "remorseful letters from a straying wife, testimony from the husband that there was love, and testimony from family and friends that the couple 'had a wonderful marriage.'" (103) Since loss of affections is the "actionable consequence" of the "parent" tort, this element plays a primary role in alienation of a child's affections claims. (104)

3. Causal Connection

If a defendant's conduct does not constitute as a substantial, causal factor in alienating the child's affections, the action will fail. (105) As inferred in MacKintosh, parental cruelty or child abuse could play the substantial role in alienating a child's affections long before the defendant exerts any sort of influence. (106) The son insisted that he left his home voluntarily and that "love and affection did not exist in his home when he left...." (107) He claimed that the defendants did not alienate his affections--rather, they encouraged him to keep in contact with his parents. (108) Of even more significance to the court were findings that the son had personally contacted a foster home and voiced detailed suicide plans to the defendants. (109) As a result, the court held that the defendants' conduct did not cause any alienation of the son's affections. (110)

This does not mean, however, that a defendant's actions must be the only reason why a child's affections for its parent disintegrate. (111) Like causal connection in spousal alienation, proof that a defendant was the one who brought about the alienation would satisfy this element. (112) For example, a mother keeping her child away from the father for fourteen years, without there being any convincing reason for doing so (other than spite), could constitute as the substantial cause of her child's loss of affections for the father. (113)

South Dakota has never conducted a thorough analysis of the elements of alienation of a child's affections, so it is necessary to view the tort through the lens of spousal alienation. (114) Though the two torts do not share judicial history, alienation of a child's affections conceptually derives from alienation of affections. (115) Thus, courts have used similar arguments in their justifications for abrogating both torts. (116)

IV. ALIENATION OF A CHILD'S AFFECTIONS MISSES THE MARK: ARGUMENTS AGAINST THE ACTION

Alienation of a child's affections has not been warmly received by most jurisdictions. (117) Courts have been very vocal as to the reasons why they were hesitant to allow the cause of action into the judicial circle. (118) As portrayed in the following sections, many rationalized away the tort in the same manner they did alienation of affections and alienation of a parent's affections. (119)

In the only decision nationwide to allow alienation of a child's affections (other than South Dakota), Washington summarized the majority of arguments against the action as including: (1) lack of authority or precedent; (2) fear of a flood of litigation; (3) inapplicability of consortium to the parent-child relationship and difficulty in determining when that right, if acknowledged, would cease; (4) possible extortionary use of the action; and (5) impossibility of measuring damages. (120) Other dissenters insist that family law, rather than tort law, provides the best medium through which to address this issue. (121) Furthermore, some argue that existing tort law already accounts for any ground that alienation of a child's affections purports to cover, thereby rendering the action unnecessary. (122)

A. LACK OF AUTHORITY OR PRECEDENT

Alienation of a child's affections differs from similar torts in that it was not recognized at common law. (123) Many courts have relied on this fact to support their refusals of the action. (124) For instance, North Carolina has refused alienation of a child's affections because it was neither recognized at common law nor statutorily codified. (125) The mother in this case alleged that the trial court erred in dismissing her counterclaim against her husband for alienation of their son's affections. (126) The court then deferred to the legislature the opportunity to make the tort a legal cause of action. (127)

Another jurisdiction affirmed a demurrer for failure to state a cause of action because alienation of a child's affections affected "one of the natural relationships of life" in a manner that was not unheard of during common law times. (128) By this, the court meant that such alienation was a typical, everyday event at common law and that judiciary of the time did not consider it to demand a judicial remedy. (129) With this in mind, the court observed that the mother alleging the alienation had not been deprived of her child's custody, services, or society--rights that were protected under common law doctrines. (130) The court consequently reasoned that the complained-of injury was purely sentimental and that there could be no recovery. (131)

As the only other jurisdiction allowing alienation of a child's affections besides South Dakota, Washington has disagreed with the preceding arguments. (132) The court insisted that "the loveless companionship of a minor child leaves much to be desired in the [parent-child] relationship." (133) The cause of action was justifiable despite lack of precedent because its true ground of action was derived from:
the outrage, the deprivation; the injury the father sustains in the
loss of his child; the insult offered to his feelings; the
heart-rending agony he must suffer in the destruction of his dearest
hopes, and the irreparable loss of that comfort and society, which may
be the only solace of his declining age. (134)


To further the argument, the court noted that "[t]he common law has been determined by the needs of society and must recognize and be adaptable to contemporary conditions and relationships." (135)

Though recognizing that the common law may be modified due to changing times, courts opposing Washington's argument maintain that judges cannot simply create new causes of action outside of legislative interpretation in order "to find a way out for plaintiffs...." (136) In this way, lack of precedent for alienation of a child's affections denies the tort a stable foundation with which to withstand the buffeting of criticism from other jurisdictions. (137) In South Dakota, the authority for the cause of action is vested statutorily; however, the South Dakota Supreme Court has provided limited interpretation of alienation of a child's affections. (138)

B. FEAR OF A FLOOD OF LITIGATION

The Iowa Supreme Court was among the earliest judicial bodies to voice concerns that allowing alienation of a child's affections actions would clog courts with excessive litigation. (139) In Pyle v. Waechter, the mother alleged that the defendants "wrongfully, intentionally, and maliciously poisoned the mind" of her son against her so that "natural filial love, affection, esteem, and regard of the son for his mother" were destroyed and alienated. (140) The court held that the action could not be supported because it was "not fundamentally grounded upon the right of the parent to the services, custody, and control of the minor...." (141) Extending the right to include alienation of a child's affections, the court explained, would open "a Pandora's box of litigation." (142) The court warned that such an extension would even allow siblings to recover. (143)

The few courts that have allowed alienation of a parent's affections actions have expressly rejected this argument, but these courts rarely discuss it with detail. (144) Since the issuance of these opinions, however, the principal jurisdiction voicing rejection of this argument has statutorily abolished alienation of affections. (145) This suggests that the state no longer recognizes alienation actions of any type. (146) Federal courts, in particular, are hesitant to allow actions when doing so would disregard legislative intent or apply broad rules to state judicial systems. (147) The Hershey court did not express this concern due to the tort's statutory codification, but stated that the "flood of litigation" issue was avoided because the son was an adult by the time of trial. (148) Though this eliminated the possibility that the adverse parents would "duke" the matter out in both family and civil court, the majority did not discuss limitations to the action which would prevent excessive litigation in a lawsuit regarding a minor child. (149)

C. CONSORTIUM IS INAPPLICABLE TO PARENT-CHILD RELATIONSHIP

Many jurisdictions have understood the term "consortium" as arising from the marital relationship. (150) For example, the Pyle court reasoned that alienation of affections differed from alienation of a child's affections in that the former was based on "the loss of the consortium, the conjugal society, and assistance of the spouse." (151) This was an exclusive right to the marriage relation. (152) Plaintiffs have attempted to analogize their claims to alienation of affections by utilizing the same rationale, but even in states where alienation of affections was still accepted, courts generally denied viability to alienation of a child's affections. (153) Courts have scoffed at alienation of a parent's affections by reflecting that children had no common law right to the consortium or services of their parents. (154)

More modern courts have conceded that children have a right to parental consortium in civil cases, but this has been limited to situations where the parent sustained severe, life-long injuries. (155) Claims for parental consortium in mere alienation of affections actions are often rejected. (156) In some personal injury claims brought by a parent regarding his or her minor child, courts have held that the parent may recover for loss of filial consortium. (157) The Strode court also maintained that "the application of a Latin name to the one makes it no more important or worthy of legal protection than the other." (158) But even the court admitted that spousal consortium was different from what was supposedly protected by alienation of a child's affections. (159) More significantly, other jurisdictions recognizing spousal alienation sustain that a parent cannot necessarily recover for a child's lost affections. (160)

Even assuming that alienation of a child's affections actions were legally accepted, courts disapproved of the ambiguity regarding when a parent's respective rights to recovery are supposed to end. (161) In Taylor v. Keefe, the Connecticut court proposed that, were it inclined to accept alienation of a child's affections as a valid cause of action, the right "would require a very careful differentiation of factual situations and strict limitation upon the granting of relief...." (162) Another court contended, in the scope of an alienation of a parent's affections action, that this ending point would be difficult to define because "the status [of childhood] hypothesizes mutability... [because] the very nature of childhood implies an eventual change to adulthood...." (163)

A limitation of the parental right to recover is suggested by the fact that the few existing claims brought by parents for alienation of an adult child's affections have all been denied recovery. (164) The Strode court also limited its acceptance of alienation of a child s affections to claims regarding a minor child. (165) In spite of this limitation, however, the majority of jurisdictions fear that recognizing the right in any capacity will turn the family into a "commercial enterprise." (166) It must be remembered that this limitation has not been recognized in South Dakota. (167)

D. POSSIBLE EXTORTIONARY USE OF ALIENATION OF A CHILD'S AFFECTIONS

Courts have also expressed concern that alienation of a child's affections "[will] exacerbate the unhappy relationships [between family members] and become a strategic tool for advantageous use of one family member over another," especially in the context of divorce. (168) A Minnesota court pointed to this argument in its refusal to sanction the action, noting that the case "demonstrate[d] the potential for grave abuses, in which a child becomes the object of intra-family controversy...." (169) Another jurisdiction recently assented to this view, insisting that alienation of affection claims would render children as "their parents' pawns to seek revenge on a former spouse's paramour." (170) Citing the majority of jurisdictions refusing to recognize the tort, the South Dakota Supreme Court observed that many of the refusals rested on the theory that "to recognize the cause of action would make a child a pawn or a 'hostage in family disputes.'" (171)

Though the Washington court colorfully described this argument as a "specious bugaboo without present day basis," the court later indicated concern for this possibility. (172) In the unpublished opinion of McKinney v. Cunniffe, (173) the father attempted to sue his ex-wife for alienation of their son's affections. (174) The court ruled that a parent could not bring the action against another parent because of several compelling policy reasons. (175) Allowing such an action, the court insisted, could "clearly harm the child." (176) The court explained that the tort would not serve the child's best interests in that the child would be used "as a vehicle for one parent to extract money from the other." (177) This concern, therefore, is forefront in the thoughts of almost all jurisdictions. (178)

E. IMPOSSIBILITY OF MEASURING DAMAGES

Lack of helpful standards to accurately determine damages has been cited as a reason to not recognize alienation of a child's affections. (179) Courts have also quashed contentions which insist that alienation of a child's affections is a viable cause of action because it has been considered in the calculation of damages for other tort claims. (180) This distinction is even more apparent where alienation of a child's affections is not an element in the tally for damages. (181)

On these grounds, the court in Montgomery v. Crum (182) ordered for new trial on a judgment awarding $25,000 to the appellee-mother. (183) In Montgomery, the mother alleged that the father, along with his parents and siblings, had abducted her daughter on more than one occasion and had thereby alienated the daughter's affections from her. (184) The court stated that loss of a child's affections could be considered by the jury--not for damages--but only to determine if the alienation had any mental or physical effect on the parent. (185)

Critics of this argument contend that it is not enough to solely justify rejection of alienation of a child's affections on these grounds. (186) These courts insist that damages related to alienation of a child's affections are measurable. (187) Regardless of the measurability of these predominantly intangible damages, this view does not address the fact that alienation of a child's affections "may be taken into account in determining the damages recoverable" for other torts. (188)

F. FAMILY LAW COMBATS PARENTAL ALIENATION BETTER THAN TORT LAW

Another argument against alienation of a child's affections actions is that family law, rather than tort law, could provide a better avenue for alienated parents to address their complaints. (189) Family law is argued to be better because it focuses on the child's well-being rather than tort law's focus on the alienated parent. (190) Family law's "best interests of the child" standard includes a list of factors through which courts are to determine custody placement and modification. (191) Such factors include the wishes of the child and guardians, the relationship of the child and each guardian, and the mental and physical health of all involved. (192) South Dakota courts also have a separate list of factors through which to discern parental fitness, including whether the custodial parent encourages a healthy relationship between the child and the noncustodial parent. (193)

Allowing family court to "fly solo" on parental alienation issues can be convenient because alienated parents often already have family and dependency actions pending in family court. (194) As one court noted, violations of statutory parental rights would be better dealt with in family court, which is "uniquely positioned to attempt to correct the violation, to minimize harm, and to fashion a remedy which may include monetary sanctions." (195) In Bock v. Lindquist, the Minnesota Supreme Court made clear that the rejection of alienation of a child's affections as a viable cause of action did not diminish "other remedies for interference with familial relationships." (196) Such remedies for violations of custody or visitation rights made actions for alienation of a child's affections "unnecessary as well as undesirable." (197)

Not everyone is on the same page regarding the debate of which legal area is best suited to deal with parental alienation. (198) Opponents of a singular focus on family law insist that the problem needs to be addressed by a combination of family and tort law. (199) Limiting parental alienation remedies to family or tort law, they claim, is not the solution because of the dual nature of an alienated parent's injuries. (200) These injuries include both the harm to the parent's relationship with his child (which lends itself to family law) and the parent's own emotional distress (more suitably addressed by tort law). (201)

Supporters of this tag-teaming between the two legal areas cite the many problems that exist with purely family law remedies for parental alienation. (202) Such remedies--including custody modification, mental health therapy, and court-mandated parenting programs--lack the "punch" necessary to address the issue. (203) Common complaints with these remedies are that they offer help too late and at too steep of a price, or do not offer any help at all. (204) Even if the alienated parent ultimately receives physical access to the child, the remedies allegedly do nothing to prevent subsequent alienating conduct from occurring. (205)

Additionally, remedies like custody modification are criticized for hurting the child more than helping. (206) One critic analogized the changing of a child's custody from one parent to the other to "throwing a child who is afraid of reptiles into a snake pit" because the child has been taught to fear the alienated parent. (207) Furthermore, these critics suggest that family law does not address every injury an alienated parent suffers--namely emotional distress. (208) Supplementing tort law remedies to those of family law would then build up the legal arsenal available to alienated parents. (209)

Support for addressing parental alienation with both family and tort law is not necessarily in favor of using the avenue of alienation of a child's affections. (210) Many view alienation of a child's affections as being antiquated and inadequate in the face of this problem. (211) The State of Washington has also admitted that "the court cannot heal the pain or undo the damage" to a child's psychological development. (212) With this in mind, courts opine that the most appropriate place to repair and rekindle the parent-child relationship is in the family court. (213)

G. WHAT WAS OLD CAN BE MADE NEW: ALREADY-EXISTING TORTS ARE BETTER REMEDIES

The general thought among anti-alienation of a child's affections advocates is that the action is unneeded in light of existing torts. (214) As the following sections illustrate, these torts include interference with the custodial relationship, intentional infliction of emotional distress, personal injury, and constitutional protections of the familial relationship. (215) Though the applicability of such remedies to parental alienation is fairly scrutinized, these actions leave fairly little ground uncovered to deem alienation of a child's affections claims necessary. (216)

1. Intentional Interference with the Custodial Relationship

The common law right against intentional interference with the custodial relationship between parents and children still exists. (217) Recovery under a modern tortious abduction claim is no longer based on loss of services; rather, the action finds basis in the sanctity of the parent-child relationship. (218) Interference with the custodial relationship requires that the parent be "deprived of his [or] her parental or custodial rights." (219) South Dakota has allotted criminal penalties to such conduct. (220)

This action does not, however, cover every possible situation resulting from parental alienation. (221) Courts often will not hold that the tort is satisfied absent "the complete removal of the child from the complaining parent's life....," (222) The Minnesota Supreme Court rejected acceptance of the action based on the belief that it "would create a new burden on children who are already dislocated by the dissolution of their parents' marriage." (223) Though courts like Minnesota present such policy arguments against recognition of the tort, the majority of jurisdictions have provided alienated parents with this civil remedy. (224)

2. Intentional Infliction oj Emotional Distress

Even if alienation of a child's affections claims are judicially abolished, torts such as intentional infliction of emotional distress are alleged to cover alienated parents for a portion of their sufferings. (225) In Raftery v. Scott, the court allowed a father to recover under an intentional infliction of emotional distress claim against the mother of his child. (226) The father alleged that the mother engaged "in a continuing and successful effort to destroy and to prevent rehabilitation of the relationship between the former husband and their son." (227) As part of her defense, the mother insisted that the claim was merely an alienation of affections claim under disguise. (228) The court, however, determined that intentional infliction of emotional distress and alienation of affections comprised two different torts. (229)

Not all courts are as accommodating of alienation of a child's affections claims dressed in the clothing of intentional infliction of emotional distress. (230) For example, a Missouri court held that a father's claim was not actionable because the emotional distress was "the alleged consequence of the same acts which caused the children to separate from the parent." (231) Courts who do not allow disguising of the claim within intentional infliction of emotional distress uphold the distinction by discussing what it takes to maintain an action and what it takes to recover damages. (232) The Pyle court, for example, stated:
The basis for the action,--the right to maintain it,--is not to be
confused with the damages that may be recovered when it is
maintainable. Because damages for mental suffering are recoverable in
certain cases, it does not follow that, in every instance where the act
of one is the cause of mental anguish in another, an actionable wrong
is committed. Where the right to maintain the action exists, the law
permits a recovery of all the damages proximately resulting from the
wrongful act. But because one entitled to maintain the action may
suffer, and is allowed to recover for, an injury to his feelings, it
does not necessarily follow that another, merely because he suffers
similarly, may, for that reason alone, maintain an action. (233)


This reasoning makes it difficult for alienated parents to recover under intentional infliction of emotional distress. (234) Absent a showing that the defendant abducted or concealed the child from the alienated parent, courts have predominantly found that the claim failed to satisfy the "extreme and outrageous" element of intentional infliction of emotional distress. (235) When the high burden is met, however, parental alienation may be considered in determining damages. (236)

3. Personal Injury

In extreme circumstances, parents have been able to recover damages in relation to their kids with personal injury claims. (237) The court in Gallimore v. Children's Hospital Medical Center, for example, held that a parent could bring such an action in order to recover damages for loss of filial consortium. (238) The Wisconsin Supreme Court has also stated that a parent may recover punitive damages for loss of both an injured minor child's earning capacity and medical expenses along with society and companionship. (239) Some courts even allow a minor child to bring personal injury claims against a third party for injuring the child's parent. (240)

These torts have been met with criticism, but mostly when a child attempts to recover for injury to a parent. (241) One court held that a child could not maintain a personal injury action for loss of "parental consortium" because, unlike the situation in a wrongful death claim, the parent-child relationship would continue and thus be subjected to the damage of subsequent litigation. (242) Damages, when granted, are often limited to compensatory rather than punitive damages. (243) A North Carolina district court, for example, limited recovery for personal injury of a child to damages amounting to loss of the child's services and forbade recovery for loss of the child's consortium. (244) Nevertheless, the increasing allowance of such recovery recognizes parents' rights to the companionship of their children in a more appropriate context than alienation of a child's affections. (245)

4. Constitutional Protection of Familial Rights

Substantive due process claims can also arise from the deprivation of a family member. (246) The Miller court noted that familial rights include having the family maintain intact without interference by any outsiders, including the government. (247) Similarly, the North Carolina Supreme Court has held that parents have an interest "in the companionship, custody, care, and control of [their children that] is protected by the United States Constitution." (248)

Two versions of these claims have been recognized. (249) Under the first version, a parent may recover damages upon a showing that state actions, such as taking the child from his custody, directly injured the parent-child relationship. (250) In order to satisfy the second version, however, a plaintiff must demonstrate "any conduct which, though unrelated to the relationship, violates the constitutional right of any person in the relationship, on the theory that such conduct incidentally injures the relationship....," (251) The right violated in this instance is the "liberty interest" that all involved parties have in the relationship's preservation. (252) This type of claim is deemed a derivative claim, like the traditional "loss of consortium" or "loss of services" tort claim. (253) To state the claim, a parent would need to "allege that she suffered damages when a third party injured her child, thus incidentally injuring the [parent-]child relationship." (254)

Constitutionally based claims also have their limitations. (255) Some jurisdictions have refused to recognize substantive due process claims "arising from the deprivation of the love and support of a family member." (256) Furthermore, the United States Supreme Court "has never held that governmental action that affects the parental relationship only incidentally... is susceptible to challenge for a violation of due process." (257) It must be remembered, despite this, that the tort undeniably supports parental rights relating to their children. (258)

V. MISSING THE MARK: ADVOCATING FOR ABOLISHMENT

For twenty-five years, South Dakota has interpreted its alienation statute to include alienation of a child's affections as a valid cause of action. (259) Since the claim is secured by statute, the legislature must repeal the statutory language allowing the tort. (260) Even without legislative action, the South Dakota Supreme Court can limit the cause of action. (261) Alienation of a child's affections should be abolished because the tort contains several shortcomings: (1) it lacks the firm foundation of historical precedent; (2) it leaves the door open for excessive litigation; (3) it is based on the heavily-criticized elements of alienation of affections; (4) there is nothing to prevent it from being used fraudulently; (5) it is an ineffective partner to family law in the fight against parental alienation; and (6) the court could utilize other torts to better address the related wrongs. (262)

Alienation of a child's affections lacks significant historical precedent in South Dakota. (263) Prior to Hershey, the court had discussed the tort in only one other case. (264) That case mentioned the action but did not discuss its validity or invalidity. (265) Hershey recognized the tort within the alienation statute based on the state constitutional principle that "every man for an injury done him in his property, person or reputation, shall have remedy by due course of law[.]" (266) In doing so, however, the court circumvented some of the major policy concerns voiced by other jurisdictions. (267) Accepting the tort under the facts of Hershey also allowed the court to forego imposing limitations to the action. (268) This differentiates South Dakota from the only other jurisdiction that considers the tort as a viable cause of action. (269) Though South Dakota's tort has statutory basis, recognition of alienation of a child's affections is the extreme minority view. (270)

South Dakota's lack of limitation on the tort also leaves the action available to a broad array of parties--potentially exposing the parent-child relationship to the "floodgates of litigation." (271) The Hershey court argued that interpreting the state's alienation statute to include the tort would not "open[] the floodgates to ongoing custody and visitation battles" because the son in that case was an adult. (272) This contrasts with Washington, which has limited acceptance of the action to inclusion of minor children only. (273) The Hershey court did not discuss any potential limitations as to who can bring the claim. (274) South Dakota has also not restricted parents from bringing the tort against the other parent. (275) The state's justices have even encouraged such actions. (276) Therefore, South Dakota's tort, as is, is even broader than Washington's action and may prove to exert more harm than help upon the parent-child relationship. (277)

The reasons that many jurisdictions cite in rejecting alienation of a child's affections also resonate in South Dakota's criticisms of alienation of affections. (278) South Dakota has defined consortium as "a right growing out of the marital relationship." (279) Because of this, the action cannot justify its basis upon the common law tort of alienation of affections. (280) The South Dakota Supreme Court has also noted that the two torts share different legal backgrounds. (281) State precedent for alienation of affections, when compared to that of alienation of a child's affections, is much more extensive and encompasses a significantly longer legal history. (282) This further illustrates the number of differences between the two torts. (283) The overwhelming majority of jurisdictions have firmly rejected alienation of a child's affection for similar reasons. (284)

Like spousal alienation, the tort also runs the risk of imposing fraudulent lawsuits upon courts and family members alike. (285) Two justices in Hunt stated that alienation of affections "fosters bitterness, promotes vexatious lawsuits, uses the marriage as a means of blackmail and character assassination, puts the marriage in the marketplace, and generally exposes the marriage to a public cleansing with a price tag attached upon it." (286) When presented with the prospect of recognizing an action stemming from alienation of affections, Justice Henderson insisted that he would not swerve from his rationale in Hunt?. (287) Although his arguments in Hunt pertained to spousal alienation, they also serve as criticisms of alienation of a child's affections. (288)

Furthermore, the Hershey court suggested assent to the view that what happens in family court should stay in family court. (289) The court particularized that "it is neither in the best interest of the child nor in the best interest of the judicial system to encourage the use of [alienation of a child's affections] in the context of child custody and visitation battles when other legal remedies are already available." (290) Circumventing this argument, the court emphasized that the son in question was an adult. (291) However, nowhere else in the country has an alienation of a child's affections action regarding an adult child ever been awarded recovery. (292)

The case in Hershey would also have been a better fit for other torts. (293) The court heavily weighed the fact that the mother had kept her son's location secret from the father for over fourteen years. (294) This fact plainly constituted more than just a mere visitation infraction. (295) This case inspires debate on whether the court would even find alienation of a child's affections actionable in a less extreme set of circumstances. (296) Though the Hershey court observed that some jurisdictions had recognized a cause of action when the facts did not involve complete removal of the child from the parent's life, the court cited to now-irrelevant cases. (297) The court regretfully chose not to reach whether the father's complaint stated a cause of action for intentional infliction of emotional distress or tortious interference with the parent-child relationship. (298) This would have provided more concrete mediums through which alienated parents could receive remedy. (299)

VI. CONCLUSION

Parental alienation is no joking matter. It counteracts reconciliation between custodial and noncustodial parents, leaving both children and parents victimized as it works to destroy the familial relationship. Thus, parental alienation is a reality which the legislative and legal communities must acknowledge and address. Recognizing alienation of a child's affections, however, is not the solution. The cause of action is derived from a dead and dying tort and thereby offers no assistance to alienated parents residing in jurisdictions barring alienation of affections. Even where heart balm torts are still accepted, the action is as effective as putting a bandage over a large surgical incision--it does not address the deep wounds sustained by the parent-child relationship as a result of parental alienation.

So what should South Dakota do to stop "missing the mark?" This is a question that cannot be answered simply. Legislative repeal of alienation of a child's affections is certainly a step in the right direction. Repealing this tort based on antiquated actions could spur reevaluation of effective remedies for alienated parents. Currently-existing torts do much to serve alienated parents, but there is no single civil action which perfectly fits all situations. A combined effort of both tort and family law may serve as the best problem-fixer, one part providing parents with monetary recovery and the other providing opportunities for familial healing. Until the judicial system determines the best way to utilize tort and family law, lawyers and judges alike must keep the target in sight when presented with dispirited parents and broken children--stopping parental alienation in its tracks and bringing the family back together.

JORDYN L. BANGASSER[dagger]

[dagger] J.D. Candidate. 2018. University of South Dakota School of Law; B.M. in Vocal Performance, 2015, University of South Dakota. 1 would like to express infinite gratitude to my parents and brother for being so supportive during this process. Another huge thank you to my editors, Anna Limoges, Joe Meader, Emily Maurice, and Shad Christman for all their insight and assistance. I also thank the editorial board members and staff writers of the South Dakota Law Review, as well as Sarah Kammer and the McKusick Law Library staff, for assisting with the research behind the development of this article.

(1.) Brief of Appellee at *8, Marko v. Marko, 2012 SD 54, 816 N.W.2d 820 (No. 26087), 2011 WL 8993452, at *8 [hereinafter Appellee's Brief]. The excerpt is from a letter written by Ashley Marko, age ten, to her mother. Id. at *2, *8. Ashley, the oldest of the Marko children, and her two younger siblings were alienated from their mother due to the efforts of their father and his girlfriend. See id. at *3, **8-9 (detailing trial court findings that the mother "is struggling to maintain her parenting relationship with the children because of the actions of [the father] and [his girlfriend]"). According to the mother, the relationship between her and Ashley became increasingly strained when Ashley began spending more time at the apartment shared by the father and his girlfriend. See Marko v. Marko, 2012 SD 54, [paragraph]18, 816 N.W.2d 820, 823-24 (finding that the father's girlfriend encouraged Ashley to write the insulting letter to mother). The trial court also voiced concern that the other Marko children were exhibiting similar behaviors. Id. [paragraph] 9, 816 N.W.2d at 824. "Exchanges before and after visits [to the father's apartmentl generated the greatest friction. The children refused to cooperate [with the mother], dashed in and out of the house, and locked themselves in the car. On more than one occasion, law enforcement officers had to intervene." Id.

(2.) See Matthew J. Sullivan, Parental Alienation Processes in Post-Divorce Cases, AFCC NEWSL. (Ass'n of Family & Conciliation Courts, Madison, W.I.), Summer 1997, at 4 (stating that "[p]arental alienation has become the 'complaint du jour' in high conflict family court custody disputes....A lack of attention to existing, destructive alienating processes will likely result in more severe child outcomes as time progresses.").

(3.) See Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DEPAUL L.REV. 113, 116-17(2011). As Varnado states:
Divorce can bring out the worst in adults. After all, the adversarial
nature of divorce, like any litigation, clearly delineates a winner and
a loser; it does not encourage cooperation during or after the lawsuit.
This competition sometimes leads to guerilla warfare between the
parents, where one or both parents attempt to destroy the parent-child
relationship between the other parent and the child.


Id.

(4.) Brittany Wong, 7 Ways Divorce Affects Kids, According To The Kids Themselves, HUFFINGTON POST (Aug. 28, 2014, 4:53 PM), http://www.huffingtonpost.com/2014/08/28/kids-and-divorce-_n_5730980.html.

(5.) Lauren Hansen, 9 negative effects divorce reportedly has on children, THE WEEK (Mar. 28, 2013), http://theweek.com/articles/466107/9-negative-effects-divorce-reportedly-children.

(6.) See Marko, 2012 SD 54, [paragraph] 32, 816 N.W.2d at 829 (holding that trial court properly considered father's behaviors when they threatened children's well-being and attempted to alienate children from custodial mother).

(7.) See Bruce L. Beverly, A Remedy to Fit the Crime: A Call for the Recognition of the Unreasonable Rejection of a Parent by a Child as Tortious Conduct, 15 J. L. FAM. STUD. 153, 153 (2013) (defining parental alienation as "the unreasonable or irrational rejection of a parent by a child primarily due to the 'negative influence of the other parent'").
Sometimes referred to as "psychological kidnapping," parental
alienation is a very broad term that refers to a wide scope of
behavior....[I]t means "any constellation of behaviors [by a parent],
whether conscious or unconscious, that could evoke a disturbance in the
relationship between a child and the targeted parent.


Varnado, supra note 3, at 120 (citations omitted). Parental alienation is not to be confused with parental alienation syndrome (PAS), a theory coined by Dr. Richard Gardner, a clinical professor in psychiatry. Ira Turkat, Parental Alienation Syndrome: A Review of Critical Issues, 18 J. AM. ACAD. MATRIM. LAW. 131, 132 (2002). PAS, which Dr. Gardner deemed a subset of parental alienation, involves the irrational or unreasonable rejection of a parent by his or her child. Beverly, supra, at 153. This rejection occurs because the child has been brainwashed or "programmed" by the alienating parent's actions. Turkat, supra, at 137-38. Psychological factors within the child and situational factors may also contribute to development of the alienation process. Id. at 138-39. Dr. Gardner believed that PAS was legally actionable based upon allegedly observable behavior "factors" and repeated syndrome "symptoms" evident in the child. Beverly, supra, at 153-54.

(8.) Appellee's Brief, supra note 1, at *6, *8.

(9.) Marko, 2012 SD 54, [paragraph]133, 816 N.W.2d at 830.

(10.) Amelia Hill, Programme aims to help people affected by 'parental alienation ', THE GUARDIAN (July 14, 2016, 2.00 AM), https://www.theguardian.com/society/2016/jul/14/programme-aims-to-help-people-affected-by-parental-alienation.

(11.) Id.

(12.) U.S. CENSUS BUREAU, ANNUAL ESTIMATES OF THE RESIDENT POPULATION FOR SELECTED AGE GROUPS BY SEX FOR THE UNITED STATES, STATES, COUNTIES, AND PUERTO RICO COMMONWEALTH AND MUNICIPIOS: APRIL 1, 2010 TO JULY 1, 2015 (2016).

(13.) See Varnado, supra note 3, at 118-19 (explaining the judicial system has attempted to utilize various aspects of family and tort law to provide remedies for alienated parents).

(14.) Id. at 127 (indicating that many courts turn to family law to combat parental alienation).

(15.) See Joy M. Feinberg & Lori S. Loeb, Custody and Visitation Interference: Alternative Remedies, 12 J. AM. ACAD. MATRIM. LAW. 271, 278-81 (1994) (discussing application of tort remedies to relieve alienated parents). But see Varnado, supra note 3, at 139-50 (contending that existing tort remedies are inadequate at addressing parental alienation).

(16.) See Hershey v. Hershey, 467 N.W.2d 484, 488-89 (S.D. 1991) (holding that the father had a valid cause of action for alienation of son's affections, or "[t]he abduction or enticement of...a child from a parent" under section 20-9-7 of South Dakota Codified Law); Strode v. Gleason, 510 P.2d 250, 254 (Wash. Ct. App. 1973) (finding that "a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child").

(17.) Hershey, 467 N.W.2d at 489.

(18.) Id. at 488 (citing S.D.C.L. [section] 20-9-7(2) (1939) (amended 2002)).

(19.) THE REVISED CODES OF THE TERRITORY OF DAKOTA [section] 32, at 237 (Geo. H. Hand, ed., 1877) (codified at S.D.C.L. [section] 20-9-7 (2004)).
The rights of personal relation forbid:
(1) The abduction of a husband from his wife, or of a parent from
his child.
(2) The abduction or enticement of a wife from her husband, of a
child from a parent, or from a guardian entitled to its custody, or
of a servant from his master.
(3) The seduction of a wife, daughter, orphan sister, or servant,
and,
(4) Any injury to a servant, which affects his liability to serve
his master.


Id. Section 20-9-6 of South Dakota Codified Law explains that "[e]very person has... the right of protection... from injury to his personal relations, and every person is bound, without contract, to abstain from injuring any such rights of others and to abstain from injuring the person or property of another." S.D.C.L. [section] 20-9-6 (2004).

(20.) 2002 S.D. Sess. Laws ch. 97, [section] 1, 176-77. This change to "gender neutral" language meant that not only could jilted husbands bring alienation of affections, but also jilted wives. See S.D.C.L. [section] 20-9-7 (2002).
The rights of a personal relation forbid:
(1) The abduction or enticement of a husband from his wife or of a
parent from a child;
(2) The abduction or enticement of a wife from her husband, of a
child from a parent, or from a guardian entitled to its custody;
(3) The seduction of a wife, daughter, or orphan sister;
(4) The seduction of a husband, son, or orphan brother.


Id.

(21.) Compare THE REVISED CODES OF THE TERRITORY OF DAKOTA [section] 32, at 237 (Geo. H. Hand, ed., 1877) (forbidding "[t]he abduction or enticement... of a child from a parent"), with S.D.C.L. [section] 20-9-7(2) (2004) (containing the same language that pertains to alienation of a child's affections).

(22.) See infra Part V (arguing for statutory repeal of the cause of action).

(23.) See infra Parts II-III (providing an overview of alienation of a child's affections and its derivations from common law spousal alienation).

(24.) See infra Part IV (explaining various arguments utilized by jurisdictions rejecting the cause of action).

(25.) See infra Part V (advocating for the legislature to statutorily repeal alienation of a child's affections).

(26.) See Winsmore v. Greenbank (1745) 125 Eng. Rep. 1330, 1330 (Ct. Com. Pl.) (recognizing that "the defendant unlawfully and unjustly persuaded procured and enticed the wife to continue absent... whereby the plaintiff lost the comfort and society of his wife").

(27.) See Daniel E. Murray, Ancient Laws on Adultery - A Synopsis, 1 J. FAM. L. 89, 89-97 (1961) (detailing the history of adultery in various ancient civilizations).

(28.) Id.

(29.) Jacob Lippman, The Breakdown of Consortium, 30 COLUM. L. REV. 651, 654-55 (1930). The Teutones were a Germanic tribe, believed to live in southern Jutland (present-day Denmark). CARL WALDMAN & CATHERINE MASON, ENCYCLOPEDIA OF EUROPEAN PEOPLES 797 (2006). Eventually the Teutones migrated southward through much of western Europe, becoming one of the first Germanic tribes to invade Roman territory. Id.

(30.) See id. at 655 (highlighting that "[t]he husband's right to punish the lover or to be compensated by him was plainly derived from the importance of lawful issue of pure blood"). See also Hoye v. Hoye, 824 S.W.2d 422, 424 (Ky. 1992) (citing Lippman, supra note 29, at 655) ("Buying a new wife insured the legitimacy of the husband's offspring.").

(31.) See Hoye, 824 S.W.2d at 423-24 (quoting Marshall L. Davidson, III, Comment, Stealing Love in Tennessee: The Thief Goes Free, 56 TENN. L. REV. 629, 630-31 (1989)) (explaining that enticement was the "loss of the wife's services or consortium," while a claim of seduction would "vindicate the husband's property rights in his wife's person and... punish the defendant for defiling the plaintiff's marriage and family honor"). Enticement was also called abduction and "lay when a stranger induced or assisted the wife to leave her husband, using fraud, violence or persuasion." HOMER H. CLARK, JR., LAW OF DOMESTIC RELATIONS [section] 10.2, at 262 (1968) (citations omitted). Seduction, by contrast, required "that there was a valid marriage and that the defendant had adulterous relations with the plaintiff's spouse." Id. [section] 10.3, at 268 (citing Fennell v. Littlejohn, 125 S.E.2d 408, 412 (S.C. 1962)).

(32.) DOUGLAS E. ABRAMS ET AL., CONTEMPORARY FAMILY LAW 488 (4th ed. 2015).

(33.) Davidson, III, supra note 31, at 631. Although Anglo-Saxon retributions for adultery and "wife-stealing" were more civilized than their bloody precedents, English common law rights in this area were like ancient legal rights in that they were only held by men. Hoye, 824 S.W.2d at 424. The basis for this unequal standard between the sexes was that a woman was considered the servant or chattel of her husband upon marriage. Id. at 425. As the "inferior" to her "superior" husband, the loss of a wife's services--companionship, affection, sexual intercourse, etc.--to another man were recoverable by her husband as monetary damages. See Moulin v. Monteleone, 115 So. 447, 450 (La. 1927) (stating part of why Louisiana does not recognize alienation of a wife's affections is that a wife is not the husband's chattel). A wife, however, had no recompense for her husband's extramarital activities. Id.; see also 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND **142-43 ("[T]he inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.").

(34.) See Heermance v. James, 47 Barb. 120, 122, 123, 127 (N.Y. Gen. Term 1866) (holding that husband had a valid alienation of affections cause of action in showing that "the defendant contrived, and with a wicked intent, tried to deprive the plaintiff of the society, affections, aid and assistance of his wife").

(35.) Id. at 123, 127.

(36.) W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS [section] 124, at 918 (5th ed. 1984). The only exception was Louisiana, which refused to acknowledge the tort as a viable cause of action because marriage was merely considered to be a civil contract and nothing more. Moulin, 115 So. at 449. Among other reasons, such as the absence of a statute conferring such a right, the Moulin court believed the action to be "revolting to a majority of men," and that it would "encourage blackmail [rather] than... protect the home." Id. at 448, 457.

(37.) See Cannon v. Miller, 322 S.E.2d 780, 791 (N.C. Ct. App. 1984) ("[T]he husband was considered to possess a proprietary interest in the body and the mind or affections of his wife.").

(38.) Michele Crissman, Comment, Alienation of Affections: An Ancient Tort--But Still Alive in South Dakota, 48 S.D. L. REV. 518, 520-21 (2003). The Married Women's Property Act did not automatically allow wives to bring legal actions against their unfaithful husbands because many courts still upheld the common law doctrine of interspousal tort immunity. See Thompson v. Thompson, 218 U.S. 611, 617 (1910) ("The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which at common law must be brought in the joint names of herself and husband."). The twentieth century, however, saw many states abrogating the doctrine. See Stacey A. Kawasaki, Recent Development, Interspousal Torts: A Procedural Framework for Hawai'i, 19 HAWAII L. REV. 377, 381-82 & nn.28-29 (1997) (listing jurisdictions that have abolished interspousal immunity).

(39.) Hoye v. Hoye, 824 S.W.2d 422, 424-25 (Ky. 1992).

(40.) Id.

(41.) See KEETON ET AL., supra note 36, [section] 124, at 930 (citations omitted) ("Since the 1930s half the states have abolished or severely limited the action for alienation of affections....").

(42.) Id. at 929 (citations omitted) (stating that there is good reason to believe that the tort serves "no preventative purpose... since such torts seldom are committed with deliberate plan").

(43.) See Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981) (stating that alienation of affections' theory of recovery is flawed because it is "rooted in ideas we have long since renounced, involving wives as property").

(44.) See Kyle Graham, Why Torts Die, FLA. ST. U. L. REV. 359, 408 (2008) (citations omitted) ("Just the threat of such a suit, with its attendant publicity, led to many a discreet payoff.").

(45.) See id. at 364 (stating that "[e]ven where these claims persist, few plaintiffs show much interest in them").

(46.) See, e.g., O'Neil v. Schuckardt, 733 P.2d 693, 698 (Idaho 1986) (holding verdicts were likely to be "tainted by passion and prejudice" because claimed injuries were intangible and few standards existed on how to award damages); Wyman v. Wallace, 615 P.2d 452, 453, 455 (Wash. 1980) (vacating its earlier ruling and abolishing alienation of affections).

(47.) See Schuckardt, 733 P.2d at 698 (denying use of the tort on public policy reasons); Fundermann, 304 N.W.2d at 794 (rejecting the cause of action because "spousal love is not property which is subject to theft"); Hoye v. Hoye, 824 S.W.2d 422, 427 (Ky. 1992) (relying on premise that affection between spouses cannot be owned to abolish tort); Helsel v. Noellsch, 107 S.W.3d 231, 233 (Mo. 2003) ("[S]uits for alienation of affection are almost exclusively brought after the marriage is either legally dissolved or irretrievably broken.... [B]y filing suit, the plaintiff is publicly acknowledging the intimate details that led to the breakdown of the marriage."); Russo v. Sutton, 422 S.E.2d 750, 751 (S.C. 1992) (holding that alienation of affections is antiquated); Wyman, 615 P.2d at 455 (citing policy reasons to abolish the tort).

(48.) ALA. CODE [section] 6-5-331 (West 2016); ARIZ. REV. STAT. ANN. [section] 25-341 (West 2016); ARK. CODE ANN. [section] 16-118-106 (West 2016); CAL. CIV. CODE [section] 43.5(a) (West 2016); COLO. REV. STAT. [section] 13-20-202 (West 2016); CONN. GEN. STAT. [section] 52-572b (West 2016); DEL. CODE ANN. tit. 10, [section] 3924 (West 2016); D.C. CODE ANN. [section] 16-923 (West 2016); FLA. STAT. [section] 771.01 (West 2016); GA. CODE ANN. [section] 51-1-17 (West 2016); 740 ILL. COMP. STAT. [section] 5/7.1(b) (West 2016); IND. CODE ANN. [section] 34-12-2-1(a)(2) (West 2016); KAN. STAT. ANN. [section] 23-2608 (West 2016); ME. REV. STAT. ANN. tit. 14, [section] 301 (West 2016); MD. CODE ANN. FAM. LAW [section] 3-103 (West 2016); MASS. GEN. LAWS ANN. ch. 207, [section] 47b (West 2016); MICH. COMP. LAWS ANN. [section] 600.2901 (West 2016); MINN. STAT. ANN. [section] 553.01 (West 2016); MONT. CODE ANN. [section] 27-1-601 (West 2015); NEB. REV. STAT. ANN. [section] 25-21,188 (West 2016); NEV. REV. STAT. ANN. [section] 41.380 (West 2016); N.H. REV. STAT. ANN. [section] 460:2 (West 2016); N.J. STAT. ANN. [section] 2A:23-1 (West 2016); N.Y. CIV. RIGHTS LAW [section] 80-a (McKinney 2016); N.D. CENT. CODE ANN. [section] 14-02-06 (West 2016); OHIO REV. CODE ANN. [section] 2305.29 (West 2015-16); OKLA. STAT. ANN. tit. 76, [section] 8.1 (West 2016); OR. REV. STAT. ANN. [section] 31.980 (West 2016); 23 PA. STAT. AND CONS. STAT. ANN. [section] 1901 (West 2016); 9 R.I. GEN. LAWS [section] 9-1-42 (West 2016); TENN. CODE ANN. [section] 36-3-701 (West 2016); TEX. FAM. CODE ANN. [section] 1.107 (West 2015); VT. STAT. ANN. tit. 15, [section] 1001 (West 2016); VA. CODE ANN. [section] 8.01-220 (West 2016); W. VA. CODE ANN. [section] 56-3-2a (West 2016); WIS. STAT. ANN. [section] 768.01 (West 2016); WYO. STAT. ANN. [section] 1-23-101 (West 2016).

(49.) See S.D.C.L. [section] 20-9-7(2) (2004) (forbidding "[t]he abduction or enticement... of a child from a parent, or from a guardian entitled to its custody").

(50.) See Hunt v. Chang, 594 P.2d 118, 123 (Haw. 1979) ("The action for alienation of affections has not been abolished by statute in this jurisdiction."); Anderson v. Ladner, 2014-CA-00730-COA ([paragraph] 28) (Miss. Ct. App. 2016) (reversing summary judgment where a genuine issue of material fact existed regarding when the wife's affections were ultimately alienated); Padwa v. Hadley, 981 P.2d 1234, 1240 (N.M. Ct. App. 1999) (stating that, though the intermediate appellate court has expressed dissatisfaction with alienation of affections, "[the] Supreme Court has not yet formally abandoned the doctrine"); Hayes v. Waltz, 784 S.E.2d 607, 616 (N.C. Ct. App. 2016) (rejecting in full the defendant's motion for judgment notwithstanding the verdict against plaintiff's spousal alienation claim); Veeder v. Kennedy, 1999 SD 23, [paragraph] 23, 589 N.W.2d 610, 616 (refusing to abolish tort for policy concerns); Nielsen v. Spencer, 2008 UT App 375, [paragraph] 27, 196 P.3d 616, 625 (holding that evidence was insufficient to support husband's alienation of affections suit against wife's paramour).

(51.) 155 N.W. 187, 187 (S.D. 1915).

(52.) See Rumpca v. Brenner, 2012 SD 33, [paragraph][paragraph] 11-12, 814 N.W.2d 128, 130-31 (reversing grant of summary judgment because there was sufficient evidence to support submitting case to jury); Veeder, 1999 SD 23, [paragraph][paragraph] 1-2, 589 N.W.2d at 612-13 (preserving alienation of affections until abolished by legislature; upholding $265,000 verdict to plaintiff, finding that defendant-employer alienated the affections of plaintiffs spouse); Pickering v. Pickering, 434 N.W.2d 758, 762 (S.D. 1989) (denying summary judgment on alienation of affections claim, finding sufficient evidence to support submitting case to jury); Pankratz v. Miller, 401 N.W.2d 543, 549 (S.D. 1987) (reversing lower court order where plaintiff failed to prove causal connection between defendant's conduct and wife's alienation of affections); Hunt v. Hunt, 309 N.W.2d 818, 823 (S.D. 1981) (Dunn, J., concurring) (preserving alienation of affections until abolished by legislature); Morey v. Keller, 85 N.W.2d 57, 59 (S.D. 1957) (affirming jury award of damages to husband where evidence of "injury to husband's marital rights" was sufficient); Pearsall v. Colgan, 76 N.W.2d 620, 622 (S.D. 1956) (reversing verdict in favor of defendant, finding sufficient evidence to justify submitting case to jury). The South Dakota Supreme Court has discussed the tort in regards to whether related damages fall under insurance coverage. See State Farm Fire & Cas. Co. v. Harbert, 2007 SD 107, [paragraph] 2, 741 N.W.2d 228, 230-31 (holding that State Farm had no duty to defend alienation of affections claim because it fell within policy's intentional tort exclusion, and that public policy discouraged insurance coverage of the claim). A South Dakota federal district court was also presented with an alienation of affections case. See Houwman v. Gaiser, No. CIV. 10-4125-KES, 2011 WL 4345236, at * 7 (D.S.D. Sept.15, 2011) (denying defendant's motion for summary judgment on the claim because evidence was sufficient to present material questions of fact to jury).

(53.) Hunt, 309 N.W.2d at 823 (Dunn, J., concurring) ("While I agree that criminal conversation should be abolished, I am convinced that the tort of alienation of affections should be preserved until repealed by legislative action.").

(54.) See S.D.C.L. [section] 20-9-7(2) (2004) ("The rights of personal relation forbid: (2) The abduction or enticement... of a child from a parent, or from a guardian entitled to its custody....").

(55.) See Varnado, supra note 3, at 142 (citing alienation of affections as a tort that courts attempted to use to address parental alienation).

(56.) See Hershey v. Hershey, 467 N.W.2d 484, 488 (S.D. 1991) (applying alienation of affections elements to alienation of a child's affections).

(57.) See MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) ("Unlike alienation of spousal affections, the alienation of affections of a child does not enjoy the same legal heritage."). But see Evans v. Tacoma Sch. Dist. No. 10, 380 P.3d 553, 558 (Wash. Ct. App. 2016) (explaining that the Strode court recognized a common law cause of action for alienation of a child's affections).

(58.) See Hershey, 467 N.W.2d at 488 (utilizing alienation of affections elements to describe alienation of a child's affections). See also Taylor v. Keefe, 52 A.2d 768, 770 (Conn. 1947) (insisting that a jury would be unable to adequately cope with the question of damages); Davis v. Hilton, 780 So. 2d 974, 976 (Fla. Dist. Ct. App. 2001) (stating that violations of statutory parental rights are best left for family court); Pyle v. Waechter, 210 N.W. 926, 928 (Iowa 1926) (extending right of recovery to include alienation of a child's affections would open a "Pandora's box of litigation"); Ronan v. Briggs, 220 N.E.2d 909, 909 (Mass. 1966) (sustaining demurrer against claims of spousal alienation and alienation of children's affections where the complaint failed to assert loss of consortium); Bock v. Lindquist, 278 N.W.2d 326, 327-28 (Minn. 1979) (fearing that the tort would produce fraudulent, extortionary litigation; clarifying that rejection of the tort did not diminish "other remedies for interference with familial relationships" which made acceptance of the action "unnecessary as well as undesirable"); Edwards v. Edwards, 259 S.E.2d 11, 14 (N.C. Ct. App. 1979) (noting that alienation of a child's affections was not actionable at common law).

(59.) See generally Varnado, supra note 3, at 139-145 (arguing that existing torts such as alienation of affections are inadequate to combat parental alienation).

(60.) See MacKintosh, 451 N.W.2d at 288 (stating that the torts differ in legal heritage). But see Evans, 380 P.3d at 558 ("Division One of this court recognized a common law cause of action for alienation of a child's affections in Strode....").

(61.) Stone v. Wall, 734 So. 2d 1038, 1041 (Fla. 1999); see also Pickle v. Page, 169 N.E. 650, 651 (N.Y. 1930) (quoting Barham v. Dennis (1600) 78 Eng. Rep. 1001, 1001 (K.B.)). This common law right still exists under the tort of intentional interference with the custodial relationship, or tortious kidnapping. Pickle, 169 N.E. at 651.

(62.) See Stone, 734 So. 2d at 1041 ("[T]he father's property interest in his heir was the legal theory supporting the writ.").

(63.) See Clark v. Bayer, 32 Ohio St. 299, 311-12 (Ohio 1877) (concluding that plaintiff's alleged deprivation of the "possession and services" of his minor children was "sufficient on the question of per quod servitium amisit"); see also Jean C. Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 IND. L. J. 590, 599 (1976) ("Recovery for tortious interference with a relational interest was first allowed in actions by masters.").

(64.) Pickle, 169 N.E. at 651.

(65.) See Russick v. Hicks, 85 F. Supp. 281, 284 (W.D. Mich. 1949) (referring to common-law family relations as being dominated by the Roman doctrine of pater familias). Given that women were deemed property themselves, mothers rarely--if ever--could bring this action because they had no property rights in their children. Stone, 734 So. 2d at 1041.

(66.) See RESTATEMENT (SECOND) OF TORTS [section][section] 699, 700 (AM. LAW INST. 1977) (listing alienation of a child's affections separately from tortious interference with custodial relationship). Alienation of a child's affections should not be confused with alienation of a parent's affections, which first appeared in America during the late 1940s. Jonathan D. Rieff, Relational Interest: A Minor Child's Action Against a Third Party Who Alienates the Affections of a Parent, 7 J. FAM. L. 14, 14-15 (1967). In actions for alienation of a parent's affections, courts allowed children to recover from third parties for taking a parent away from the familial unit. Id. This fledgling tort barely got off the ground before courts started shooting it down. Id. at 15.

(67.) See Sullivan, supra note 2, at 4 (stating that parental alienation "has become the 'complaint du jour' in high conflict family court custody disputes").

(68.) Varnado, supra note 3, at 139, 142 (citations omitted). See also Jeffrey Brian Greenstein, Sex, Lies and American Tort Law: The Love Triangle in Context, 5 GEO. J. GENDER & L. 723, 728-35 (2004) (providing brief description of the four categories of heart balm or amatory torts: (1) breach of promise to marry, (2) seduction, (3) alienation of affections, and (4) criminal conversation).

(69.) See generally Varnado, supra note 3, at 139-45 (arguing that existing torts such as alienation of affections are inadequate to combat parental alienation).

(70.) See Varnado, supra note 3, at 142 (citing alienation of affections as a tort that courts attempted to use to address parental alienation).

(71.) 467 N. W.2d 484, 489 (S.D. 1991) ("[W]e hold that Father states a cause of action in tort against Mother for alienation of Son's affections."). In a case earlier than Hershey, the court broached the topic of alienation of a child's affections. See MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) (concluding that the issue of whether the alienation of a child's affections claim was a viable cause of action did not need to be addressed, holding that the facts sufficiently indicated that there was little affection between the son and his parents). Since Hershey, there has been one other case in front of the court which briefly touched the tort. See Mendenhall v. Swanson, 2017 SD 2, [paragraph][paragraph]5-6, 15-16, _ N.W.2d_, _ (reversing $25,000 award for alienation of daughter's affections claim because factual findings from previous proceedings were "not per se noticeable under Rule 201").

(72.) Hershey, 467 N.W.2d at 485.

(73.) Id. at 485-86.

(74.) Id. at 486.

(75.) Id. at 485.

(76.) Id.

(11.) Id.

(78.) Id.

(79.) Id. at 485-86.

(80.) Id. at 487, 489. The court explained the remanding of the limitation issue as follows: Although the statute of limitations does not bar Mother's recovery of arrearages within the twenty years prior to the commencement of her 1988 action, based on the present record, we are inclined to believe that Mother's concealment of Son waived her right to receive the $125 monthly child support payments from 1971 on, but not from 1968 to 1971. However, we defer these determinations to the trial court pending consideration of all the evidence on these issues, along with Father's claims.

Id. at 487.

(81.) Id. at 489. The court indicated that it approved the dismissal only because the father was not allowed to "assert a counterclaim for a new cause of action in response to an order to show cause." Id. Due to this finding, the court chose not to reach the question of whether or not the father's counterclaim also constituted a cause of action for intentional infliction of emotional distress or tortious interference with the custodial relationship. Id.

(82.) Id. at 488.

(83.) Id. The court faced a similar set of facts a few years later in the case of In re Loomis. In re Loomis, 1998 SD 113, [paragraph] 27, 587 N.W.2d 427 (Sabers, J., concurring). As in Hershey, the father objected to paying back child support because he was unaware of his daughter's existence for fourteen years. Id. [paragraph] 3, 587 N.W.2d at 428. In his concurrence, Justice Sabers opined that the father "would be foolish not to attempt to offset any such judgment by bringing actions against [the mother] for alienation of affections, intentional infliction of emotional distress, or tortious interference with the parent/child relationship as provided in Hershey...." Id. [paragraph] 27, 587 N.W.2d at 431 (Sabers, J., concurring). Other discussion regarding parental alienation has traipsed into the court on the arm of family law. See, e.g., McCarty v. McCarty 2015 SD 59, [paragraph] 22, 867 N.W.2d 355, 362 (noting that the trial court reprimanded mother in child custody modification hearing and threatened to impose sanctions "if she continued to alienate the children from Father and Stepmother").

(84.) Id.

(85.) Id. at 488 (quoting Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D. 1981)).

(86.) See Strode v. Gleason, 510 P.2d 250, 251, 254 (Wash. Ct. App. 1973) (holding that "[a]n intention on the part of the third person that such wrongful interference results in a loss of affection or family association" is an element).

(87.) Pankratz v. Miller, 401 N.W.2d 543, 548-49 (S.D. 1987) (quoting Pedersen v. Jirsa, 125 N.W.2d 38, 43 (Minn. 1963)) ("The mere fact that a wife may become infatuated with a person other than her husband gives no rise for a cause of action for alienation of affections, in the absence of a showing that the other person intentionally and wrongfully caused the husband to lose his wife's affections."). See also Zepeda v. Zepeda, 2001 SD 101, [paragraph][paragraph] 16, 19, 632 N.W.2d 48, 54 & n.6, 55 (awarding custody of son to mother because son exhibited a closer bond to mother and mother did not attempt to alienate the child from the father).

(88.) See MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) ("Far from jeopardizing relationships with the family, the [defendants] sought to... protect a child's emotional and physical well-being. Their conduct and motivation was exemplary. They were simply and clearly acting to protect the welfare of a child whom they viewed to be in jeopardy."). The court also dismissed a libel and slander claim and an intentional infliction of emotional distress claim against the defendants on similar grounds, noting that "society encourages their conduct, as evidenced by the child abuse reporting statute" found in section 26-10-14 of South Dakota Codified Law. Id. at 286-87.

(89.) 76 N.W.2d 620, 621 (S.D. 1956).

(90.) Id. at 620-21.

(91.) Id. at 622.

(92.) Id. at 621. Essentially, the court recognized that every man is his own master, and "every person is presumed to intend the consequences of his own voluntary acts." Id.

(93.) Id. at 622. The South Dakota Supreme Court has held that "specific intent to alienate one spouse's affections from the other spouse [must exist]." State Farm Fire & Cas. Co. v. Harbert, 2007 SD 107, [paragraph] 24, 741 N.W.2d 228, 236. See also Houwman v. Gaiser, No. CIV. 10-4125-KES, 2011 WL 4345236, at *5 (D.S.D. Sept.15, 2011) (stipulating that the defendant must act "with specific intent to alienate one spouse's affection from the other spouse"); Rumpca v. Brenner, 2012 SD 33, [paragraph] 7, 814 N.W.2d 128, 129 (listing specific intent as part of "defendant's wrongful conduct" element). In Harbert, the court reasoned that such specific intent need not be present at the onset; rather, it "may develop at any point during the adulterous relationship." Harbert, 2007 SD 107, [paragraph] 23, 741 N.W.2d at 235. A South Dakota district court has also held that the defendant's intent need not be to end the marriage between the two spouses. Houwman, No. CIV. 10-4125-KES, 2011 WL 4345236, at *6. Along the same lines, the defendant's insistence to not end his or her own marriage does not establish as a matter of law that the defendant lacked intent to gain the affections of another's spouse. Id.

(94.) See Hershey v. Hershey, 467 N.W.2d 484, 489 (S.D. 1991) (noting that the mother deprived the father of a relationship with their son for fourteen years). In a case such as the Hershey case, the alienated father would need to show that the mother specifically intended to alienate the son's affections by taking him out-of-state and keeping his location a secret from the father. Id. at 489 (emphasizing specific intent when mother kept son's location secret from father for fourteen years).

(95.) MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990).

(96.) Id. at 285-86.

(97.) Id. at 286.

(98.) Id. at 288. In another case, the court reversed a change in custody order granted to a mother because the child in question, who had previously indicated that his preferred parent was his father, had voiced a change in his preference principally due to his mother's frequent instigations. Price v. Price, 2000 SD 64, [paragraph][paragraph] 1, 9, 22, 25, 611 N.W.2d 425, 428, 429, 431, 432.

Given the history of [mother]'s belittling [father] to the children and attempting to influence them, there is little reason to believe that anything has changed since August of 1994, the date of the last custody evaluation. Based on the record evidence, [father] appears to be best equipped to provide for [child]'s temporal, mental and moral welfare.

Id. [paragraph]25, N.W.2d at 432.

(99.) Houwman v. Gaiser, No. CIV. 10-4125-KES, 2011 WL 4345236, at *5 (D.S.D. Sept. 15, 2011). The second element in alienation of affections requires "loss of affection or consortium" to be shown. Id. (emphasis added).

(100.) Pankratz v. Miller, 401 N.W.2d 543, 546 (S.D. 1987). The Ohio Supreme Court has allowed parents of injured minor children to recover "for loss of filial consortium.... [which includes] the parent's loss of the services, society, companionship, comfort, love and solace of the injured child." Gallimore v. Children's Hosp. Med. Ctr., 617 N.E.2d 1052, 1054 (Ohio 1993).

(101.) See RESTATEMENT (SECOND) OF TORTS [section] 683, cmt. f (AM. LAW INST. 1977) (explaining that examples of such manifestations in alienation of affection claims include refusals to cohabitate, separation, and divorce, and any conduct that indicates the dwindling of one spouse's regard for the other). Since consortium in alienation of affections claims must be "objectively manifested," it can be concluded that the same would apply to loss of affections. See Houwman, No. CIV. 10-4125-KES, 2011 WL 4345236, at **5-6 (ruling that there was a material issue of fact as to whether there was a loss of affection between spouses).

(102.) Rumpca v. Brenner, 2012 SD 33, [paragraph] 7, 814 N.W.2d 128, 130. In Rumpca, the court reversed the trial court's summary judgment order for the defendant, finding that conflicting evidence created a genuine issue of material fact on whether plaintiff's wife had affection for the plaintiff that the defendant could alienate. Id. [paragraph] 11, 814 N.W.2d at 130.

(103.) Houwman, No. CIV. 10-4125-KES, 2011 WL 4345236, at *6 (quoting Veeder v. Kennedy, 1999 SD 23, [paragraph] 27, 589 N.W.2d 610, 617).

(104.) Pankratz, 401 N.W.2d at 546 (citing Holmstrom v. Wall, 268 N.W. 423, 424 (1936)). See also MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) (refusing the question of whether alienation of a child's affections is a valid cause of action when case on its face indicated that little affection existed between son and plaintiffs).

(105.) See RESTATEMENT (SECOND) OF TORTS [section] 683 cmt. k (AM. LAW INST. 1977) ("[T]here is no liability unless the actor's conduct has been a substantial factor in causing the loss.").

(106.) See MacKintosh, 451 N.W.2d at 287 (holding defendants immune from liability under libel and slander action for making a good faith report of suspected child abuse).

(107.) Id. at 286.

(108.) Id.

(109.) Id.

(110.) Id. at 288. The defendants' conduct included contacting the Child Protection Division of the Department of Social Services and requesting an evaluation of the MacKintosh home due to concerns of emotional abuse by the son's father. Id. at 286.

(111.) See id. at 288 (noting that the case on its face suggested that no affection existed between the plaintiffs and their son, irrespective of defendants' conduct).

(112.) Houwman v. Gaiser, No. CIV. 10-4125-KES, 2011 WL 4345236, at *7 (D.S.D. Sept. 15, 2011) (quoting Pankratz v. Miller, 401 N.W.2d 543, 547 n.9 (S.D. 1987)).

(113.) See Hershey v. Hershey, 467 N. W.2d 484, 489 (S.D. 1991) (stating that the father's counterclaim for alienation of a child's affections constituted a valid cause of action).

(114.) See id. at 488 (applying elements of alienation of affections to alienation of a child's affections). One other state, Washington, has found that "a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child." Strode v. Gleason, 510 P.2d 250, 254 (Wash. Ct. App. 1973). In Strode, the natural mother of two children alleged that the defendant-couple had caused the filing of a juvenile court petition against her, which evidenced the alienation of her children. Id. at 251. The children had previously lived with the defendants for almost ten years, and the defendants had continued to visit the children after they had been returned to their mother's custody. Id. The mother's son began being difficult; he made a tape recording attempting to prove that his mother was an unfit parent and he exchanged frequent phone calls with the defendants. Id. The petition was filed after the son had complained to a school counselor, allegedly at the encouragement of the defendants. Id. The Washington court mostly approved of jury instructions stating that the elements to establish a prima facie cause of action for alienation of a child's affections included: (1) an existing family relationship; (2) a third person's wrongful interference with the relationship; with (3) the intention that the wrongful interference results in a loss of affection or family association; (4) a causal connection between the interference and the loss of affection; and (5) that the interference resulted in damages. Id. Regarding the "wrongful interference" element, the court held that the term was too ambiguous and replaced it with "malicious interference." Id. at 254. To satisfy this "maliciousness" element, "a showing of an unjustifiable interference within the parent[-]child relationship" would suffice. MacKintosh, 415 N.W.2d at 288. The court also explained that alienation of a child's affections may be a gradual process; therefore, the actual alienation could not be considered to have occurred "until some overt act takes place which shows a want of affection." Strode, 510 P.2d at 254. When the parent is aware that the hurt is suffered, the alienation of a child's affections action accrues. Id. at 254-55.

(115.) See Varnado, supra note 3, at 119 ("[C]ourts have attempted to force parental alienation into existing tort causes of action, typically, alienation of affections....").

(116.) See Bock v. Lindquist, 278 N.W.2d 326, 327-28 (Minn. 1979) (rejecting alienation of a child's affections for the same policy reasons that the state had utilized to eliminate spousal alienation). Compare CLARK, JR., supra note 31, [section] 10.2, at 267 (listing common arguments for abrogation of spousal alienation), with Strode, 510 P.2d at 254 (summarizing principal reasons for rejecting alienation of a child's affections claims).

(117.) See Stevens v. Redwing, 146 F.3d 538, 544 (8th Cir. 1998) (applying Missouri law and holding that the state's long-arm statute did not apply to the cause of action); Orlando v. Alamo, 646 F.2d 1288, 1289-90 (8th Cir. 1981) (applying Arkansas law; finding that, regardless of whether or not the state recognized the tort, the cause of action was barred by the statute of limitations); Raftery v. Scott, 756 F.2d 335, 338-39 (4th Cir. 1985) (applying Virginia law and explaining that, though the tort does not constitute a valid cause of action, parental alienation may be a considered factor in a claim for intentional infliction of emotional distress); Schuppin v. Unification Church, 435 F. Supp. 603, 609 (D. Vt. 1977) (finding no cause of action existed for loss of adult daughter's affections); Conroy v. Schilling, No. 1 CA-CV 10-0097, 2010 WL 5060703, at *2 (Ariz. Ct. App. Nov. 23, 2010) (holding that, even if the action was cognizable in the state, father's complaint asserting he suffered continued alienation of his daughter alleged no supporting facts); Zamstein v. Marvasti, 692 A.2d 781, 790 (Conn. 1997) (concluding that plaintiff's alternative claim for alienation of his children's affections failed because the legislature had abolished alienation of affections actions); Davis v. Hilton, 780 So. 2d 974, 975 (Fla. Dist. Ct. App. 2001) (holding that parent could not recover loss of child's affections where the other parent damaged the parent-child relationship); Hyman v. Moldovan, 305 S.E.2d 648, 648 (Ga. Ct. App. 1983) (rejecting father's claim that defendants conspired to alienate his minor son's affections from him due to abolishment of alienation statute); Pyle v. Waechter, 210 N.W. 926, 929 (Iowa 1926) (concluding that nothing justified application of alienation action where mother did not allege "that she was deprived of the services, companionship, care, or custody of the child"); Montgomery v. Crum, 161 N.E. 251, 260 (Ind. 1928) (ruling in abduction action that jury was improperly instructed to consider alienation of a child's affections in assessing damages); Ronan v. Briggs, 220 N.E.2d 909, 909 (Mass. 1966) (citing Nelson v. Richwagen, 95 N.E.2d 545, 545-46 (Mass 1950)) ("[N]o cause of action exists for the alienation of the affections of children."); Bock, 278 N.W.2d at 326-27 (holding that a parent has no cause of action); Hester v. Barnett, 723 S.W.2d 544, 555-56 (Mo.Ct.App. 1987) (accepting the reasoning of other courts to reject action); Segal v. Lynch, 993 A.2d 1229, 1239 (N.J. Super. Ct. App. Div. 2010) (refusing to allow action due to parens patriae responsibility and "best interests of the child" standard); Miles v. Cuthbert, 122 N.Y.S. 703, 703 (N.Y. Sup. Ct. 1909) ("[N]o action will lie by a parent to recover the loss of the love and affection of a child."); Edwards v. Edwards, 259 S.E.2d 11, 15 (N.C. Ct. App. 1979) (explaining that the right to recover for spousal alienation does not necessarily translate into a parental right to recover for loss of child's affections); Bartanus v. Lis, 480 A.2d 1178, 1181 (Pa. Super. Ct. 1984) (holding that action was not cognizable in the jurisdiction).

(118.) See Taylor v. Keefe, 52 A.2d 768, 770 (Conn. 1947) (insisting that a jury would be unable to adequately cope with question of damages); Davis, 780 So. 2d at 976 (stating that violations of statutory parental rights are best left for family court); Pyle, 210 N.W. at 928 (extending the right of recovery to include alienation of a child's affections would open a "Pandora's box of litigation"); Ronan, 220 N.E.2d at 909 (sustaining demurrer against claims of alienation of affections and alienation of children's affections where complaint failed to assert loss of consortium); Bock, 278 N.W.2d at 328 (fearing that the tort would produce fraudulent, extortionary litigation; clarifying that rejection of the tort did not diminish "other remedies for interference with familial relationships" which made acceptance of the action "unnecessary as well as undesirable"); Edwards, 259 S.E.2d at 14 (noting that alienation of a child's affections was not actionable at common law).

(119.) Compare CLARK, JR., supra note 31, [section] 10.2, at 267 (listing common arguments for abrogation of spousal alienation), with Strode, 510 P.2d at 254 (summarizing principal reasons for rejecting alienation of a child's affections and alienation of a parent's affections claims).

(120.) Strode, 510 P.2d at 254. The court noted that these arguments initially arose in the context of rejecting alienation of a parent's affections claims. Id.

(121.) Varnado, supra note 3, at 127.

(122.) See Feinberg & Loeb, supra note 15, at 278-81 (discussing application of tort remedies to relieve alienated parents). But see Varnado, supra note 3, at 139 ("None of the existing causes of action are adequate vehicles with which to address parental alienation.").

(123.) See Mackintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) (stating that alienation of a child's affections has a different "legal heritage" than spousal alienation). But see Evans v. Tacoma Sch. Dist. No. 10, 380 P.3d 553, 558 (Wash. Ct. App. 2016) (explaining that the state recognized a common law cause of action for alienation of a child's affections).

(124.) See Pyle v. Waechter, 210 N.W. 926, 929 (Iowa 1926) (maintaining that, though the action shared some bases with actions for "injured feelings, disgrace, and humiliation," such a fact did not provide plaintiff with an action for alienation of child's affections). Citing the majority view among jurisdictions, the Restatement (Second) of Torts states that alienation of a child's affections is not a viable cause of action. RESTATEMENT (SECOND) OF TORTS [section] 699 (AM. LAW INST. 1977) ("One 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."). Section 702A also states that alienation of a parent's affections is not a viable cause of action. See id. [section] 702A ("One who, without more, alienates from a child the affections of a parent, is not liable to the child.").

(125.) Edwards v. Edwards, 259 S.E.2d 11,14 (N.C. Ct. App. 1979).

(126.) Id. Using the same rationale as a prior opinion rejecting an alienation of a parent's affections claim, the court stated that the child's supposed "right" to recover was sociological rather than legal. Id. (quoting Henson v. Thomas, 56 S.E.2d 432, 434 (N.C. 1949)); see also Ronan v. Briggs, 220 N.E.2d 909, 909 (Mass. 1966) (citing Nelson v. Richwagen, 95 N.E.2d 545, 545-46 (Mass. 1950)) (utilizing rejection of alienation of a parent's affections to find that no cause of action exists for alienation of a child's affections).

(127.) Edwards, 259 S.E.2d at 14-15 (quoting Henson, 56 S.E.2d. at 434).

(128.) Pyle, 210 N.W. at 927, 929.

(129.) See id. at 927 ("The case is not one where the common law must keep pace with changing conditions of life and civilization, and must be adjustable to the new conditions brought about by discovery and invention.").

(130.) Id. ("We have long recognized... that a parent who is entitled to the care, custody, and services of a minor child may, when he is deprived thereof by another, have a right of action therefor.").

(131.) Id. at 928.

(132.) See Strode v. Gleason, 510 P.2d 250, 252 (Wash. Ct. App. 1973) ("The novelty of an asserted right and the lack of precedent are not valid reasons for denying relief to one who has been injured by the conduct of another.").

(133.) Id. (quoting 1 FOWLER V. HARPER & FLEMING JAMES, JR., THE LAW OF TORTS [section] 8.5, at 623 (1956)).

(134.) Id. (quoting HARPER & JAMES, JR., supra note 133, [section] 8.5, at 623).

(135.) Id. (citations omitted). This doctrine of judicial empiricism has often been cited by cases recognizing alienation of a parent's affections. See, e.g., Daily v. Parker, 152 F.2d 174, 176-77 (7th Cir. 1945) (citing judicial empiricism in its holding that "a child today has a right enforceable in a court of law, against one who has invaded and taken from said child the support and maintenance of its father").

(136.) See. e.g., Henson v. Thomas, 56 S.E.2d 432, 434 (N.C. 1949) ("Our province is to enforce the law as we find it and to determine the existence or nonexistence of such a cause of action by the state of the law as it now exists.").

(137.) See, e.g., Pyle v. Waechter, 210 N.W. 926, 929 (Iowa 1926) (distinguishing alienation of a child's affections from spousal alienation because "[t]here is nothing in the principles which underlie [spousal alienation], or the rules of law applicable to it, that will justify their application to the claim of a mother to recover for the alienation of the affection of a minor child").

(138.) See S.D.C.L. [section] 20-9-7(2) (2004) ("The rights of personal relation forbid: (2) The abduction or enticement... of a child from a parent, or from a guardian entitled to its custody.... "); Hershey v. Hershey, 467 N.W.2d 484, 488 (S.D. 1991) (applying elements of spousal alienation to alienation of a child's affections without further explanation or application); MacKintosh v. Carter, 451 N. W.2d 285, 288 (S.D. 1990) (mentioning the Strode elements for alienation of a child's affections but not reaching the issue of whether the action was valid in South Dakota).

(139.) Pyle, 210 N.W. at 928.

(140.) Id. at 927.

(141.) Id. at 928.

(142.) Id.

(143.) Id. A New York court also reached a similar conclusion when faced with an alienation of a parent's affections claim. Morrow v. Yannantuono, 273 N.Y.S. 912, 913-14 (N.Y. Sup. Ct. 1934). The court stated that allowing the action "would mean that everyone whose cheek is tinged by the blush of shame would rush into court to ask punitive damages to compensate them for their distress of body and mind and the damage that their reputation suffered in the community." Id. at 914.

(144.) See, e.g., Ruffalo v. United States, 590 F. Supp. 706, 712 (W.D. Mo. 1984) (observing that state courts could restrict the claim to situations that were not "insubstantial in duration and effect"); Johnson v. Luhman, 71 N.E.2d 810, 811 (Ill. App. Ct. 1947) (dismissing flood of litigation argument as a "specious" concern, observing that any common law action could be subject to such abuse if not monitored by the judiciary). Another court stated that the contention plainly had no merit; even if it did, it would not constitute a valid reason for denying the right. Miller v. Monsen, 37 N.W.2d 543, 546 (Minn. 1949) (noting that sufficient time had elapsed since Daily v. Parker and Johnson for a reasonable trial period and that there had been no flood of litigation).

(145.) See 740 ILL. COMP. STAT. ANN. [section] 5/7.1(b) (West 2016) ("An action may not be brought for alienation of affections based on facts occurring on or after the effective date of this amendatory Act of the 99th General Assembly.").

(146.) See id. [section] 5/7.1 (statutorily abolishing "alienation of affections" with no specific reference to spousal alienation).

(147.) See Marin K. Levy, Judging the Flood of Litigation, 80 U. CHI. L. REV. 1007, 1057-58(2013) (contending that, though purely court-centered floodgate arguments are difficult to support, arguments relating to concerns between the governmental branches and federal and state court systems are based in constitutional principles).

(148.) See Hershey v. Hershey, 467 N.W.2d 484, 488-89 (S.D. 1991) (stating that the action was statutorily secured and that son's adult status eliminated the three main policy reasons normally advanced to reject the tort: "best interests of the child; availability of other remedies; and opening the floodgates to ongoing custody and visitation battles").

(149.) See id. at 489 (recognizing that father stated viable cause of action for alienation of a child's affections by pointing to the fact that son was adult).

(150.) See, e.g., Morey v. Keller, 85 N.W.2d 57, 58 (S.D. 1957) ("Consortium is a right growing out of the marital relationship."); Edwards v. Edwards, 259 S.E.2d 11, 15 (N.C. Ct. App. 1979) (concluding that consortium does not exist in the parent-child relationship).

(151.) Pyle v. Waechter, 210 N.W. 926, 929 (Iowa 1926).

(152.) Id.

(153.) See id.
There is nothing in the principles which underlie [an alienation of
affection] action, or the rules of law applicable to it, that will
justify their application to the claim of a mother to recover for the
alienation of the affection of a minor child where it is not alleged
that she was deprived of the services, companionship, care, or custody
of the child.


Id.

(154.) See. e.g., Brent v. Mathis, 2013-IA-01074-SCT ([paragraph] 10) (Miss. 2014) (defining "loss of consortium" as deriving from the spousal relationship).

(155.) See, e.g., Williams v. Hook, 804 P.2d 1131, 1132 (Okla. 1990) (finding "minor children or incapacitated dependent children may maintain a cause of action for the permanent loss of parental consortium when a parent is negligently injured by a third party").

(156.) See, e.g., Greene v. Roy, 604 So.2d 1359, 1365 (La. Ct. App. 1992) (refusing to recognize alienation of a parent's affections as a viable cause of action like the majority of other jurisdictions); Pyle, 210 N.W. at 929 ("[Consortium] is a right which exists by virtue of the marriage relation, and is peculiar to it.").

(157.) See, e.g., Gallimore v. Children's Hosp. Med. Ctr., 617 N.E.2d 1052, 1054 (Ohio 1993) (defining "consortium" in this context as including "the parent's loss of the services, society, companionship, comfort, love and solace of the injured child").

(158.) Strode v. Gleason, 510 P.2d 250, 252 (Wash. Ct. App. 1973) (quoting HARPER & JAMES, JR., supra note 133, [section] 8.5, at 623).

(159.) Id. (quoting HARPER & JAMES, JR., supra note 133, [section] 8.5, at 623).

(160.) See, e.g., Montgomery v. Crum, 161 N.E. 251, 260 (Ind. 1928) (holding that "[t]he foundation of an action for the alienation of affections brought by a husband or wife and an action by a parent for the abduction of his minor child is not the same"); Ronan v. Briggs, 220 N.E.2d 909, 909 (Mass. 1966) (noting that the complaint did not allege loss of consortium in its decision to sustain demurrer against claims of spousal alienation and alienation of children's affections); Edwards v. Edwards, 259 S.E.2d 11, 15 (N.C. Ct. App. 1979) ("Although a cause of action exists for one spouse to recover for the alienation of the affections of the other spouse it does not necessarily follow that a parent may recover for the lost companionship of a child.").

(161.) See Taylor v. Keefe, 52 A.2d 768, 770 (Conn. 1947) (citing inability to determine when the parental right would cease as an argument for rejection of alienation of affections in the parent-child relationship).

(162.) Id.

(163.) Nelson v. Richwagen, 95 N.E.2d 545, 546 (Mass. 1950).

(164.) See Schuppin v. Unification Church, 435 F. Supp. 603, 609 (D. Vt. 1977) (finding no cause of action existed for loss of adult daughter's affections); French v Safeway Stores, Inc., 430 P.2d 1021, 1023 (Or. 1967) (stating that plaintiff's complaint for invasion of right to privacy was really an allegation for alienation of adult child's affections, which was not sufficiently stated). The same is true for the few cases brought by an adult child for alienation of a parent's affections. See Coulter v. Coulter, 214 P. 400, 400, 402 (Colo. 1923) (concluding that sixty-two year old's cause of action for alienation of his mother's affections was defective); Cole v. Cole, 177 N.E. 810, 810-11 (Mass. 1931) (sustaining demurrer of son's complaint for alienation of his eighty-four-year-old mother's affections); Garza v. Garza, 209 S.W.2d 1012, 1012, 1015 (Tex. Civ. App. 1948) (rejecting claim brought by twenty-two-year-old and his minor siblings against father's second wife for alienation of father's affections).

(165.) Strode v. Gleason, 510 P.2d 250, 254 (Wash. Ct. App. 1973).

(166.) See Henson v. Thomas, 56 S.E.2d 432, 434 (N.C. 1949) ("It is not for the courts to convert the home into a commercial enterprise in which each member of the group has a right to seek legal redress for the loss of its benefits.").

(167.) See Hershey v. Hershey, 467 N.W.2d 484, 489 (S.D. 1991) (accepting alienation of a child's affections where son was an adult, but not addressing whether action extended to minor children).

(168.) Bock v. Lindquist, 278 N.W.2d 326, 328 (Minn. 1979).

(169.) Id. at 327-28.

(170.) Brent v. Mathis, 2013-IA-01074-SCT ([paragraph] 14) (Miss. 2014).

(171.) Mackintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) (citations omitted).

(172.) Strode v. Gleason, 510 P.2d 250, 254 (Wash. Ct. App. 1973). The court maintained that these "justifications" for barring the tort "reflect[ed] a distrust in the ability of courts and juries to distinguish just causes from false claims...." Id.

(173.) McKinney v. Cunniffe, No. 55631-2-1, 2005 WL 3150319 (Wash. Ct. App. Nov. 28, 2005).

(174.) Id. at*l.

(175.) Id. at *2. The court insisted that, "[t]o the extent that the parent-child relationship can be protected and nurtured, the appropriate place to seek a remedy is in the family court... [and] not through tort litigation." Id. at *3.

(176.) Id at *3.

(177.) Id.

(178.) See Hershey v. Hershey, 467 N.W.2d 484, 488 (S.D. 1991) (noting that it is not "in the best interests of the judicial system to encourage the use of this tort in the context of child custody and visitation battles when other legal remedies are already available").

(179.) See Taylor v. Keefe, 52 A.2d 768, 770 (Conn. 1947) (voicing concern that a jury would be unable to adequately award damages when damages were "apt to overlap" due to different ages of children involved).

(180.) See Morris v. Bruney, 338 S.E.2d 561, 564 (N.C. Ct. App. 1986) (maintaining that jury consideration of alienation of affections "did not form the basis for a cause of action based solely on alienation of affection"). Torts in which alienation of a child's affections may be considered include seduction and tortious interference with the custodial relationship (abduction of minor children). Id.

(181.) See RESTATEMENT (SECOND) OF TORTS [section] 699 cmt. a (AM. LAW INST. 1977) (stating that any loss of the child's affections "may"--as opposed to "shall"--be taken into account in determining the damages recoverable in an action for seduction or tortious interference with the custodial relationship).

(182.) 161 N.E. 251 (Ind. 1928).

(183.) Id. at 251, 253, 261.

(184.) Id. at 254-55.

(185.) Id. at 260.

(186.) See Miller v. Monsen, 37 N.W.2d 543, 546 (Minn. 1949) (rejecting arguments, in an alienation of a parent's affections case, that "courts are incapable of defining the child's rights and that juries are incapable of assessing its damages").

(187.) Id. at 545 (citations omitted). The Miller court held that a child's right under an alienation of a parent's affections action "has pecuniary value capable of measurement," and noted that such a right was already given pecuniary value in actions for wrongful death of a parent and under the federal employers' liability act. Id.

(188.) RESTATEMENT (SECOND) OF TORTS [section] 699 cmt. a (AM. LAW INST. 1977).

(189.) Varnado, supra note 3, at 127. The traditional view of judges, scholars, and practitioners has been to choose only family law or only tort law to address parental alienation; many have turned to family law. Id.

(190.) See Varnado, supra note 3, at 127-28 (noting some professionals think that family court should have jurisdiction over any claim related to the parent-child relationship and arguing that preserving relationships is central to family law).

(191.) Shannon Dean Sexton, A Custody System Free of Gender Preferences and Consistent With the Best Interests of the Child: Suggestions for a More Protective and Equitable Custody System, 88 KY. L. J. 761, 771-72 (1999-2000).

(192.) Id. Other factors include: the child's "adjustment" to his or her home, education, and community environment; evidence of domestic violence; and consideration as to who has been the primary care-giver. Id.

(193.) Kreps v. Kreps, 2010 SD 12, [paragraph] 26, 778 N.W.2d 835, 843-44 (quoting Pietrzak v. Schroeder, 2009 SD 1, [paragraph] 41, 759 N.W.2d 734, 744). When considering parental fitness, a court may consider:
(1) mental and physical health; (2) capacity and disposition to provide
the child with protection, food, clothing, medical care, and other
basic needs; (3) ability to give the child love, affection, guidance,
education and to impart the family's religion or creed; (4) willingness
to maturely encourage and provide frequent and meaningful contact
between the child and the other parent; (5) commitment to prepare the
child for responsible adulthood, as well as to insure that the child
experiences a fulfilling childhood; and (6) exemplary modeling so that
the child witnesses firsthand what it means to be a good parent, a
loving spouse, and a responsible citizen.


Id.

(194.) See Davis v. Hilton, 780 So. 2d 974, 976 (Fla. Dist. Ct. App. 2001) (stating that violations of statutory parental rights, dissolution of marriage orders, or court-approved agreements are best left for family court).

(195.) Id.

(196.) Bock v. Lindquist, 278 N.W.2d 326, 328 (Minn. 1979).

(197.) Id.

(198.) See Varnado, supra note 3, at 128 ("Forcing parental alienation into one area of the law is a mistake. Relief for parental alienation should not be an 'either/or' proposition.").

(199.) Id.

(200.) Id.

(201.) Id. (citations omitted).

(202.) Id. at 128-29 (citing Davis v. Hilton, 780 So. 2d 974, 977 (Fla. Dist. Ct. App. 2001) (Gross, J., concurring).

(203.) See id. at 138 ("Alienated parents, and even some not personally victimized by parental alienation, also question whether family law packs the punch needed to fight parental alienation."); Richard A. Warshak, Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated Children, 48 FAM. CT. REV. 48, 50 (2010) (describing court-offered options for families with severely alienated children).

(204.) See Warshak, supra note 203, at 50-53 (noting that family law options may financially burden parents and occur years after child was initially alienated).

(205.) Feinberg & Loeb, supra note 15, at 276.

(206.) Varnado, supra note 3, at 132.

(207.) Robert Z. Dobrish, Pretrial Approaches to Divorce and Custody in New York, in NEW YORK FAMILY LAW STRATEGIES: LEADING LAWYERS ON OVERSEEING MEDIATION, SETTLING CHILD CUSTODY ISSUES, AND MANAGING DIVORCE PROCEEDINGS 7, 10 (Jo Alice Darden, ed., 2009).

(208.) Linda L. Berger, Lies Between Mommy and Daddy: The Case for Recognizing Spousal Emotional Distress Claims Based on Domestic Deceit that Interferes with Parent-Child Relationships, 33 LOY. L.A. L. REV. 449, 526 (1999-2000). Family law considers awarding damages for emotional distress as "antithetical" to its objectives. Varnado, supra note 3, at 139.

(209.) See Varnado, supra note 3, at 128 ("[F]amily law and tort law should complement and serve dual purposes for alienated parents.").

(210.) Edward B. Bonis, Torts Arising out of Interference with Custody and Visitation, 7 DIVORCE LITIG. 192, 199 (1995) ("Unlike the torts of intentional infliction of emotional distress and interference with custody or visitation, courts are most reluctant to award damages on a theory of alienation of affections when a party interferes with the other party's right to custody or visitation.").

(211.) Varnado, supra note 3, at 143-45. Critics also disparage the attempt to use alienation of a child's affections to address parental alienation because the tort is not actionable in most jurisdictions. Id. at 143-44.

(212.) McKinney v. Cunniffe, No. 55631-2-1, 2005 WL 3150319, at *3 (Wash. Ct. App. Nov. 28, 2005).

(213.) See id. ("To the extent that the parent-child relationship can be protected and nurtured, the appropriate place to seek a remedy is in the family court... [and] not through tort litigation.").

(214.) See Bock v. Lindquist, 278 N.W.2d 326, 328 (Minn. 1979) (clarifying that its rejection of alienation of a child's affections did not diminish "other remedies for interference with familial relationships" which made acceptance of the action "unnecessary as well as undesirable"); see also KEETON ET AL., supra note 36, [section] 124, at 930 (explaining that relief for interference with family relations may be achieved through torts like fraud or defamation).

(215.) See, e.g., Raftery v. Scott, 756 F.2d 335, 339 (4th Cir. 1985) (holding that an intentional infliction of emotional distress claim is independent of an alienation of affection claim); Stone v. Wall, 734 So. 2d 1038, 1047 (Fla. 1999) (recognizing the common law cause of action for intentional interference with custodial relationship by "a third party non-parent"); Miller v. Monsen, 37 N.W.2d 543, 545 (Minn. 1949) (stating that family rights are protected under the United States Constitution "against outside interference even by government"); Gallimore v. Children's Hosp. Med. Ctr., 617 N.E.2d 1052, 1054 (Ohio 1993) (holding that parent could recover loss of filial consortium regarding her injured minor child).

(216.) See Feinberg & Loeb, supra note 15, at 278-81, 283-84 (discussing application of tort remedies to relieve alienated parents). But see Varnado, supra note 3, at 139-50 ("None of the existing causes of action are adequate vehicles with which to address parental alienation.").

(217.) See Anonymous v. Anonymous, 672 So. 2d 787, 790 (Ala. 1995) (holding that plaintiffs sufficiently pled claim amounting to intentional or malicious custodial interference with custodial relationship if proven); Borer v. Am. Airlines, Inc., 563 P.2d 858, 865 n.3 (Cal. 1977) (maintaining that rejecting cause of action for negligent injury to consortium in parent-child relationship did not bar action for intentional interference with parental consortium); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 524 (Colo. 1989) (adopting tortious interference with the custodial relationship because it was a state crime to take a child from his lawful custodian); Stone v. Wall, 734 So. 2d 1038, 1047 (Fla. 1999) (giving judicial recognition to common law cause of action for intentional interference with custodial relationship by "a third party non-parent"); Shields v. Martin, 706 P.2d 21, 26 (Idaho 1985) (finding that defendants were joint tortfeasors regarding the tortious abduction of plaintiffs' child); Montgomery v. Crum, 161 N.E. 251, 261 (Ind. 1928) (stating that, had the defendant pled guilty to criminal "child stealing," a guilty plea would have been competent evidence in a civil action for damages in tortious abduction); Wood v. Wood, 338 N.W.2d 123, 127 (Iowa 1983) (concluding to follow majority of jurisdictions in recognizing action); Washburn v. Abrams, 90 S.W. 997, 998 (Ky. 1906) (holding that appellant could maintain action against appellees if she was the surviving parent and entitled to children's services and society); Murphy v. I.S.K.Con. of New England, Inc., 571 N.E.2d 340, 352 (Mass. 1991) (recognizing tort as "a contemporary expression encompassing actions for abduction, enticement, harboring, and secreting of a minor child" from the custodial parent); Brown v. Brown, 61 N.W.2d 656, 660 (Mich. 1953) (finding testimony showed that defendants conspired to abduct plaintiff's children); Plante v. Engel, 469 A.2d 1299, 1302 (N.H. 1983) (holding that plaintiff's tortious abduction claim was a separate action from intentional infliction of emotional distress); Pickle v. Page, 169 N.E. 650, 653 (N.Y. 1930) (stating that tortious abduction claims do not require alleged loss of child's services); Howell v. Howell, 78 S.E. 222, 224 (N.C. 1913) (concluding that plaintiff's tortious abduction claim stated a valid cause of action); Clark v. Bayer, 32 Ohio St. 299, 312 (Ohio 1877) (maintaining that plaintiff could recover compensatory damages against defendant who took infants from plaintiff's possession); McBride v. Magnuson, 578 P.2d 1259, 1260 (Or. 1978) (overruling demurrer when complaint alleged facts that, if proved, amounted to a tortious abduction claim); Bedard v. Notre Dame Hosp., 151 A.2d 690, 692 (R.I. 1959) (opining that custody of a minor child was a legally protected interest at common law and by state statute); Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986) (stating that evidence supported jury's finding that defendant "abducted his grandson in violation of a court order"); Kessel v. Leavitt, 511 S.E.2d 720, 765 (W. Va. 1998) (holding that parent can maintain action against defendant who tortiously interferes with relationship between parent and minor child).

Connecticut and Maine have implied that they would recognize the tort if it was properly presented. See Marshak v. Marshak, 628 A.2d 964, 970 (Conn. 1993) (maintaining that rejection of plaintiff s action in the case did not preclude extension of liability to third parties conspiring with and aiding in tortious abduction); Finn v. Lipman, 526 A.2d 1380, 1381-83 (Me. 1987) (noting the analysis of states accepting the action in determining that plaintiff did not present sufficient material facts to support claims for intentional interference with the custodial relationship or intentional infliction of emotional distress); see also Mathews v. Murray, 113 S.E.2d 232, 235 (Ga. Ct. App. 1960) (reversing demurrer granted to defendant where complaint stated facts that, if proven, constituted cause of action for tortious abduction); Spencer v. Terebelo, 373 So. 2d 200, 202 (La. Ct. App. 1979) (upholding action because it was based on a "breach of a legal duty owed to the custodial parent by the non-custodial parent"); Khalifa v. Shannon, 945 A.2d 1244, 1246 (Md. 2008) (rejecting motion to dismiss tortious abduction complaint because the claim did not require alleged loss of services).

Illinois and Missouri have contrasting caselaw on the subject. Compare Whitehorse v. Critchfield, 494 N.E.2d 743, 744 (Ill. App. Ct. 1986) (refusing to recognize "tortious interference with a custodial parent's right to custody, care, and companionship of his child"), with Dymek v. Nyquist, 469 N.E.2d 659, 666 (Ill.

App. Ct. 1984) (holding that parent can maintain action for "loss of a minor child's society and companionship"); compare Politte v. Politte, 727 S.W.2d 198, 198 (Mo. Ct. App. 1987) (dismissing father's action for "interference with his visitation and temporary custody rights" for failure to state a claim), with Kramer v. Leineweber, 642 S.W.2d 364, 366 (Mo. Ct. App. 1982) (citations omitted) ("A tort action against one who deprives a parent of a child has long been recognized in Missouri....").

(218.) Stone, 734 So.2d at 1042 (citing KEETON ET AL., supra note 36, [section] 124, at 924-25). Now both the custodial father and custodial mother are allowed to bring the action. Id.

(219.) Kessel, 511 S.E.2d at 761 n.44. Usually this deprivation is characterized by the child's physical absence from the home, which is not required to satisfy an alienation of a child's affections claim. See, e.g., Murphy, 571 N.E.2d at 351 ("Implicit in each [tortious abduction] action is the requirement that the child be physically absent from the home for a continuous period of time."). Intentional interference with the custodial relationship is distinguishable from alienation of a child's affections in that alienation of a child's affections "merely requires allegations of an interference with the child's affections...." Stone, 734 So.2d at 1045.

(220.) See. e.g., S.D.C.L. [section] 22-19-9 (2006).
Any parent who takes, entices away, or keeps his or her unmarried minor
child from the custody or visitation of the other parent, or any other
person having lawful custody or right of visitation, in violation of a
custody or visitation determination entitled to enforcement by the
courts of this state, without prior consent is guilty of a Class 1
misdemeanor. Any subsequent violation of this section is a Class 6
felony.


Id.

(221.) See, e.g., Hershey v. Hershey, 476 N.W.2d 484, 488 (S.D. 1991) ("Most of the jurisdictions which have rejected a parent's cause of action for alienation of affections, or for intentional infliction of emotional distress, have done so when the cause of action was based on simple interference with visitation rights."); MacKintosh v. Carter, 451 N.W.2d 285, 288 (S.D. 1990) (noting Strode as the only other case where a jurisdiction recognized alienation of a child's affections "absent an actual abduction or kidnapping").

(222.) Hershey, 476 N.W.2d at 488.

(223.) Larson v. Dunn, 460 N.W.2d 39, 45 (Minn. 1990). The court reasoned that the tort would "place innocent children in the middle of a vigorous, probably vicious, lawsuit between their parents" and "duplicate the ambivalence and dislocation of the dissolution itself." Id. at 46. Oklahoma and Wyoming have also refused to recognize intentional interference with the custodial relationship. See Zaharias v. Gammill, 844 P.2d 137, 138 (Okla. 1992) (refusing to create the tort); Hoblyn v. Johnson, 55 P.3d 1219, 1222 (Wyo. 2002) (affirming dismissal of parents' tortious interference claim against grandparents).

(224.) See Wood v. Wood, 338 N.W.2d 123, 127 (Iowa 1983) (following the majority of jurisdictions in recognizing the action). The Restatement (Second) of Torts also recognizes a parental right for this action. See RESTATEMENT (SECOND) OF TORTS [section] 700 (AM. LAW INST. 1977) ("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.").

(225.) See, e.g., Raftery v. Scott, 756 F.2d 335, 339 (4th Cir. 1985) ("[I]t seems clear that, absent a bar for some reason, altogether independent of the alienation of affection contention, a cause of action should lie for psychological damage flowing from the enforced separation from the father, even, or, indeed, especially if the affection of the father had in no way abated, an entirely plausible possibility."); Sheltra v. Smith, 392 A.2d 431, 432 (Vt. 1978) (holding that alienated mother presented sufficient complaint for intentional infliction of emotional distress).

(226.) Raftery, 756 F.2d at 339-40.

(227.) Id. at 337.

(228.) Id. at 338. The basis of the mother's argument was that the law of the relevant state (Virginia) had already statutorily eliminated alienation of affections. Id.

(229.) See id. at 339 n.4 (explaining that intentional infliction of emotional distress requires an intentional or reckless action by outrageous and intolerable conduct, a causal connection, and severe emotional distress; whereas alienation of affections has no "showing of severe emotional distress" requirement and is satisfied by a showing of "a 'malicious' (meaning unjustifiable) interference or an intention that such interference result in the loss of affection"). Similarly, another court found that a mother's complaint sufficiently supported a cause of action. Sheltra, 392 A.2d at 432. The complaint in Sheltra alleged that the defendant "willfully, maliciously, intentionally, and outrageously inflicted extreme mental suffering and acute mental distress on the [mother], by willfully, maliciously, and outrageously rendering it impossible for any personal contact or other communication to take place between the [mother] and her daughter Monica Smith." Id. On review, the court found the complaint "allege[d] the four elements of the tort necessary to establish the prima facie case...." Id.

(230.) See, e.g., Owens v. Owens, 471 So. 2d 920, 921 (La. Ct. App. 1985) (rejecting father's intentional infliction of emotional distress claim related to custodial mother's alleged violation of his visitation rights); R.J. v. S.L.J., 810 S.W.2d 608, 609 (Mo. Ct. App. 1991) (refusing to recognize hybrid claim of intentional infliction of emotional distress/alienation of affections as a valid cause of action); Segal v. Lynch, 993 A.2d 1229, 1240, 1244 (N.J. Super. Ct. App. Div. 2010) (rejecting father's intentional infliction of emotional distress claim regarding the alleged alienation of his two children where the "overarching force" was not the best interests of the children); Gleiss v. Newman, 415 N.W.2d 845, 845-46 (Wis. Ct. App. 1987) (rejecting mother's intentional infliction of emotional distress claim related to custodial father's alleged violation of her visitation rights).

(231.) R. J., 810 S.W.2d at 609 (citing Meikle v. Van Biber, 745 S.W.2d 714, 717 (Mo. Ct. App. 1987)).

(232.) See, e.g., Pyle v. Waechter, 210 N.W. 926, 928-29 (Iowa 1926) (stating such reasoning in the context of alleged alienation of a child's affections); Morris v. Bruney, 338 S.E.2d 561, 672 (N.C. Ct. App. 1986) (citing abduction cases where alienation of affections was one element of damages that could be considered and insisting that this fact "[did] not form the basis for a cause of action based solely on alienation of affection").

(233.) Pyle, 210 N.W. at 928-29.

(234.) See Hixon v. Buchberger, 507 A.2d 607, 607-08 (Md. 1986) (finding that parent failed to state intentional infliction of emotional distress claim where defendant was verbally belligerent to parent in front of child, made it physically difficult for parent to take child with him, and intended to supplant parent as child's father figure).

(235.) Varnado, supra note 3, at 146.

(236.) See Morris, 338 S.E.2d at 563-64 (noting torts in which alienation of a child's affections may be considered, such as seduction and tortious interference with the custodial relationship (specifically, abduction of minor children)).

(237.) See, e.g., Yordon v. Savage, 279 So. 2d 844, 846 (Fla. 1973) (holding that either parent or both parents together have cause of action for "loss of the child's companionship, society, and services, including personal services to the parent and income which the child might earn for the direct and indirect benefit for the parent" resulting from child's tortious injury); Brown v. Lyons, 378 S.E.2d 243, 246 (N.C. Ct. App. 1989) ("When an unemancipated minor child is injured by another party's alleged negligence... a claim by the parent [arises] for loss of services during the child's minority and for medical expenses to treat the injury."); Gallimore v. Children's Hosp. Med. Ctr., 617 N.E.2d 1052, 1054 (Ohio 1993) (affirming lower court decision stating that parent could recover loss of filial consortium pertaining to her injured minor child); Wangen v. Ford Motor Co., 294 N.W.2d 437, 466 (Wis. 1980) (holding that parents of injured child could recover punitive damages "incident to their action for compensatory damages").

(238.) Gallimore, 617 N.E.2d at 1057. The court defined "consortium" in this context as including "services, society, companionship, comfort, love and solace." Id.

(239.) Wangen, 294 N.W.2d at 465.

(240.) See, e.g., Williams v. Hook, 804 P.2d 1131, 1132 (Okla. 1990) (finding "minor children or incapacitated dependent children may maintain a cause of action for the permanent loss of parental consortium when a parent is negligently injured by a third party"); Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990) (holding that "children may recover for loss of consortium when a third party causes serious, permanent, and disabling injuries to their parent"); Nulle v. Gillette-Campbell Cty. Joint Powers Fire Bd., 797 P.2d 1171, 1176 (Wyo. 1990) (concluding that "minor children have an independent claim for loss of parental consortium resulting from injuries tortiously inflicted on their parent by a third person").

(241.) See Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471, 473 (D.C. Cir. 1958) (stating that, since children could not recover for the loss of a parent's affections, they should not be able to recover under a negligence tort); Gray v. Suggs, 728 S.W.2d 148, 148 (Ark. 1987) (deferring acceptance of action to the legislature); Borer v. American Airlines, Inc., 563 P.2d 858, 865 (Cal. 1977) (rejecting cause of action for negligent injury to consortium in the parent-child relationship); Lee v. Colorado Dept. of Health, 718 P.2d 221, 233 (Colo.1986) (affirming the setting aside of personal injury verdicts for children's loss of father's companionship); Dearborn Fabricating & Engineering Corp., Inc. v. Wickham, 551 N.E.2d 1135, 1139 (Ind. 1990) (holding that, "apart from wrongful death actions," children may not recover for the negligent injury of a parent).

(242.) Dearborn, 551 N.E.2d at 1139. The court was especially concerned of the potential harm to the family unit that could be generated by children's loss of consortium actions. Id. at 1137.

(243.) See Bouchereau v. Gautreaux, No. 14-805-JWD-SCR, 2015 WL 5321285, at *16 (M.D. La. Sept. 11, 2015) (applying Louisiana law, parents could not recover damages for emotional and mental distress resulting from son's injuries); Bliss v. Allentown Pub. Library, 534 F. Supp. 356, 359-60 (E.D. Pa. 1982) (holding that parents could not recover punitive damages for child's injuries where defendant's conduct was not "willful, malicious or in wanton disregard of [parents'] rights"); Bube v. Birmingham Ry., Light & Power Co., 37 So. 285, 280-81 (Ala. 1903) (stating that father could not recover punitive damages for minor son's injuries); Baltimore & O. S. W. Ry. Co. v. Keck, 89 Ill. App. 72, 77-78 (Ill. App. Ct. 1899) (finding that exemplary damages, if recoverable at all, belonged to the injured son rather than the father); Fowler Butane Gas Co. v. Varner, 141 So. 2d 226, 236 (Miss. 1962) (holding that punitive and exemplary damages were not recoverable in a suit by parents for injury to their child); Hughey v. Ausborn, 154 S.E.2d 839, 841-42 (S.C. 1967) (stating that father could not recover punitive damages in action for his child's injuries). But see Wangen, 294 N.W.2d at 466 ("[P]unitive damages are recoverable by the parents of an injured child incident to their action for compensatory damages.").

(244.) Laughter v. Aventis Pasteur, Inc., 291 F. Supp. 2d 406, 412-13 (M.D.N.C. 2003).

(245.) See, e.g., Miller v. Westcor, 831 P.2d 386, 394 (Ariz. Ct. App. 1991) (stating that parents provided sufficient evidence of interference with the parent-child relationship to present question of recovery on loss of consortium to the jury).

(246.) See, e.g., Tyner v. Brunswick Cty. Dep't of Soc. Servs., 776 F. Supp. 2d 133, 147-48 (E.D.N.C. 2011) (describing various types of these claims, despite concluding that mother failed to properly state derivative claim for the "sudden loss of her children").

(247.) Miller v. Monsen, 37 N.W.2d 543, 545 (Minn. 1949).

(248.) Price v. Howard, 484 S.E.2d 528, 531 (N.C. 1977).

(249.) Shaw v. Stroud, 13 F.3d 791, 804 (4th Cir. 1994).

(250.) Id.

(251.) Ruckerv. Harford Cty., 946 F.2d 278, 282 (4th Cir. 1991) (emphasis added).

(252.) Id.

(253.) Tyner v. Brunswick Cty. Dep't of Soc. Servs., 776 F. Supp. 2d 133, 147 (E.D.N.C. 2011).

(254.) Id. at 148 n. 18.

(255.) See Shaw, 13 F.3d at 805 (refusing to extend substantive due process claims "to encompass deprivations resulting from governmental actions affecting the family only incidentally").

(256.) Id. (citations omitted); see also Harpole v. Arkansas Dep't of Human Servs., 820 F.2d 923, 928 (8th Cir. 1987) (holding that grandmother could not recover against state for its conduct which indirectly resulted in injury to her grandson).

(257.) Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986).

(258.) See Feinberg & Loeb, supra note 15, at 283-84 (discussing constitutional protections for custody and visitation interventions). For those who are still unsatisfied with tort law's present legal options, a proposal has emerged for a new kind of tort that would be more able to address concerns related to parental alienation: inappropriate parental influence. Varnado, supra note 3, at 150. Inappropriate parental influence attempts to insert itself as the "middle child" between alienation of affections and intentional infliction of emotional distress, making up for the former's less-stringent elements but giving alienated parents a better shot at recovery than the latter. Id. To satisfy an inappropriate parental influence claim, a plaintiff-parent would have to establish five elements:
(1) a sufficiently substantial relationship existed between the
plaintiff-parent and the child prior to the alienating conduct; (2) the
defendant-parent engaged in severe or pervasive alienating conduct; (3)
damage to or destruction of the plaintiff-parent's relationship with
the child; (4) the damage to or destruction of the relationship between
the plaintiff-parent and the child was caused by the defendant-parent's
severe or pervasive alienating conduct; and (5) the plaintiff-parent
suffered severe emotional distress as a result.


Id. at 151-52.

Like alienation of a child's affections, inappropriate parental influence is potentially subject to many of the same criticisms. See id. at 158-62 (stating that possible arguments against the tort include: flood of litigation; potential extortionary use of the action; unsavory focus on compensating the alienated parent rather than repairing the damaged or destroyed parent-child relationship, potential escalation of intrafamily conflict; disservice to the child's best interests; potential negative financial impact on the child; difficulty involved with judicial handling of the tort; and difficulties of proving the claim). Inappropriate parental influence has also made little to no headway in the legal world, despite the primary proponent's optimism regarding the tort's prospective success. See id. at 150 ("Because IPI would be specifically tailored to parental alienation, it would avoid the pitfalls associated with existing tort-based causes of action.").

(259.) Hershey v. Hershey, 467 N.W.2d 484, 488-89 (S.D. 1991). The tort also has been statutorily recognized since 1877. THE REVISED CODES OF THE TERRITORY OF DAKOTA [section] 32, at 237 (Geo. H. Hand, ed., 1877) (current version at S.D.C.L. [section] 20-9-7 (2004)). This statute has not been reviewed since its last amendment in 2002. 2002 S.D. Sess. Laws ch. 97, [section] 1, 176-77. Even then, the legislature only rendered the causes listed therein as "gender neutral." Id.

(260.) See Hershey, 467 N.W.2d at 488 (stating that alienation of affections is secured by section 20-9-7 of the South Dakota Codified Laws, which forbids in part "[t]he abduction or enticement of... a child from a parent"); MacKintosh v. Carter, 451 N.W.2d 285, 287-88 (S.D. 1990) (recognizing the common law tort of alienation of affections but noting that alienation of a child's affections did not "enjoy the same legal heritage").

(261.) See McKinney v. Cunniffe, No. 55631-2-1, 2005 WL 3150319, at *2 (Wash. Ct. App. Nov. 28, 2005) (limiting the action so that parents cannot bring it against each other). It must be noted that Washington does not statutorily recognize alienation of a child's affections. See Strode v. Gleason, 510 P.2d 250, 251 (Wash. Ct. App. 1973) (explaining that, at common law, parents could recover damages for loss of child's society after proving "deprivation of the services or custody of the child").

(262.) See supra Part IV (listing common arguments of jurisdictions rejecting alienation of a child's affections). This section will refer only to alienation of a child's affections under the assumption that alienation of a parent's affections should be abolished for similar reasons. Id.

(263.) See Hershey, 467 N.W.2d at 489 (holding that father stated a valid cause of action), MacKintosh, 451 N.W.2d at 288 (deeming it unnecessary to reach the issue of whether South Dakota recognized the action). These two cases constitute the only precedential authority in South Dakota. Id. The court only mentioned the tort in Mendenhall v. Swanson, but only to reverse the award granted for it on procedural grounds. See Mendenhall v. Swanson, 2017 SD 2, [paragraph][paragraph] 5-6, 15-16, _ N.W.2d _, _ (reversing $25,000 award for alienation of daughter's affections claim because factual findings from previous proceedings were "not per se noticeable under Rule 201").

(264.) MacKintosh, 451 N.W.2d at 287 (noting that parents' alleged complaints included alienation of a child's affections).

(265.) Id. at 288 ("We need not reach the issue of whether the tort of alienation of affection of a child is a valid cause of action in South Dakota....").

(266.) Hershey, 467 N.W.2d at 488 (quoting S.D. CONST. art. VI, [section] 20).

(267.) See id. (explaining that most jurisdictions have rejected the tort when the facts alleged "simple interference with visitation rights," the reasoning being that "it is neither in the best interests of the child nor in the best interests of the judicial system to encourage the use of this tort in the context of child custody and visitation battles when other legal remedies are already available").

(268.) Compare id. at 489 ("In the present case, Mother kept Son's whereabouts a secret from Father for some fourteen years. Son is now an adult. That fact eliminates the three policy considerations usually advanced for refusing to recognize the cause of action: best interests of the child; availability of other remedies; and opening the floodgates to ongoing custody and visitation battles."), with Strode v. Gleason, 510 P.2d 250, 254 (Wash. Ct. App. 1973) ("We hold that a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child."). See also McKinney v. Cunniffe, No. 55631-2-1, 2005 WL 3150319, at *2 (Wash. Ct. App. Nov. 28, 2005) (limiting action so that parents cannot bring it against each other).

(269.) See Hershey, 467 N.W.2d at 488 (recognizing that the cause of action is statutorily codified); Strode, 510 P.2d at 254 (recognizing the cause of action only judicially).

(270.) See S.D.C.L. [section] 20-9-7(2) (2004) ("The rights of personal relation forbid: (2) The abduction or enticement... of a child from a parent, or from a guardian entitled to its custody...."); see also Stevens v. Redwing, 146 F.3d 538, 544 (8th Cir. 1998) (applying Missouri law and holding that the state's long-arm statute did not apply to the cause of action); Orlando v. Alamo, 646 F.2d 1288, 1289-90 (8th Cir. 1981) (applying Arkansas law; finding that, regardless of whether or not the state recognized the tort, the cause of action was barred by the statute of limitations).

(271.) See Hershey, 467 N.W.2d at 489 (holding that father stated a viable cause of action but not imposing any limitations on the tort).

(272.) Id. at 488-89.

(273.) See Strode, 510 P.2d at 254 (holding that Washington recognizes a parental right to compensatory damages for malicious alienation of a minor child's affections).

(274.) See Hershey, 467 N.W.2d at 489 (stating that, because son in the case was an adult, several policy arguments against acceptance of the tort were not at issue).

(275.) Compare id. at 489 (discussing no potential limitations to the action), with McKinney v. Cunniffe, No. 55631-2-1, 2005 WL 3150319, at *2 (Wash. Ct. App. Nov. 28, 2005) (refusing to allow parents to sue each other for alienation of a child's affections).

(276.) See In re Loomis, 1998 SD 113, [paragraph]27, 587 N.W.2d 427, 431 (Sabers, J., concurring) (encouraging father to bring alienation of a child's affections action against mother).

(277.) See Hershey, 467 N.W.2d at 488 (recognizing that the tort is not in the child's best interests when battles over custody and visitation rights are ongoing).

(278.) See Hunt v. Hunt, 309 N.W.2d 818, 821-22 (S.D. 1981) (arguing that alienation of affections is an "outmoded archaic holdover[] from an era when wives were considered the chattel of their spouse rather than distinct legal entities," that the action is subject to potential abuse, and that assessing damages is difficult). Though Hunt abolished the heart balm tort of criminal conversation, alienation of affections was preserved due to a concurring opinion supported by three Justices. Id. at 822-23 (Dunn, J., concurring).

(279.) Morey v. Keller, 85 N. W.2d 57, 58 (S.D.I 957) (emphasis added).

(280.) See supra Part IV.C (including jurisdictions that have defined consortium in a manner inapplicable to the parent-child relationship). The tort is statutorily secured. S.D.C.L. [section] 20-9-7(2) (2004) (including the action within the statutory language).

(281.) Mackintosh v. Carter, 451 N.W.2d 285, 287-88 (S.D. 1990).

(282.) Compare supra Part II (detailing South Dakota precedent for alienation of affections), with Part III.B (discussing South Dakota precedent for alienation of a child's affections).

(283.) See S.D.C.L. [section] 20-9-7 (1)-(2) (2004) (utilizing separate language for the torts of spousal alienation and alienation of a child's affections).

(284.) See supra Part 1V.C (detailing the traditional definition of consortium as an argument against the action).

(285.) See supra Part IV.D (stipulating concerns that the tort would instigate fraudulent litigation).

(286.) Hunt v. Hunt, 309 N.W.2d 818, 822 (S.D. 1981). Chief Justice Wollman concurred in Justice Henderson's opinion. Id.

(287.) Hershey v. Hershey, 467 N.W.2d 484, 490 (S.D. 1991) (Henderson, J., concurring in part and dissenting in part). Justice Henderson stated:
My rationale is expressly set forth in Hunt. I do not wish to swerve
from the reasoning set forth therein, as joined by then Chief Justice
Wollman. I agree that the alienation of affections suit in this
proceeding, was procedurally improper, which I understand to be the
holding under the writing of Justice Sabers. In my opinion, the
dissertation on alienation of affections should end there... for if the
alienation of affections action is dismissed as the result of our
affirmance of the trial court's decision, the action has simply not
survived and we need not reach any further in our legal dissertation...
because we are adjudicating upon a matter which has been decided and we
are attempting to write upon a case that might arise in the future.


Id.

(288.) See Hunt, 309 N. W.2d at 821-22 (citing arguments that other jurisdictions use to reject alienation of a child's affections).

(289.) See Hershey, 467 N.W.2d at 489 (holding that father stated viable cause of action in the case because best interests of child did not need to be addressed).

(290.) Id. at 488.

(291.) Id. at 489. Even though the court noted that the child in question had reached majority, the court did not expressly limit the action to either minors or adults. Id.

(292.) See Schuppin v. Unification Church, 435 F. Supp. 603, 609 (D. Vt. 1977) (finding no cause of action existed for loss of adult daughter's affections); French v Safeway Stores, Inc., 430 P.2d 1021, 1023 (Or. 1967) (stating that plaintiff's complaint for invasion of right to privacy was really an allegation for alienation of adult child's affections, which was not sufficiently stated).

(293.) See In re Loomis, 1998 SD 113, [paragraph] 3, 587 N.W.2d 427, 428 (stipulating that father had been unaware of his daughter's existence for fourteen years); Hershey, 467 N.W.2d at 489 (noting that father also argued his counterclaim under the theory of "tortious interference with the parent[-]child relationship"). It must be remembered that South Dakota does penalize parents who violate a custody order. S.D.C.L. [section] 22-19-9 (2006).

(294.) Hershey, 467 N.W.2d at 489.

(295.) Id. at 488-89. Justice Sabers' concurrence in Loomis also encouraged the father to file an alienation of a child's affections claim because he did not know that he had a daughter during the first fourteen years of her life directly due to the mother's actions. Loomis, 1999 SD 113, [paragraph] 27, 587 N.W.2d at 431 (Sabers, J., concurring).

(296.) See Hershey, 467 N.W.2d at 485 (involving fourteen-year separation between father and son).

(297.) Id. at 488 (citing Bhama v. Bhama, 425 N.W.2d 733 (Mich. Ct. App. 1988); Dymek v. Nyquist, 469 N.E.2d 659 (Ill. App. Ct. 1984)). Bhama, however, deals with an alienation of a child's affections claim disguised as intentional infliction of emotional distress. Bhama, 425 N.W.2d at 734 (explaining that plaintiff filed complaint "alleging intentional and negligent emotional distress" due to defendant's brainwashing of plaintiff's children). The Dymek court attempted to distinguish the father's action by stating that "the present case does not concern the alienation of a child's affections." Dymek, 469 N.E.2d at 666. Furthermore, the jurisdiction from which Dymek arises has recently repealed its alienation statute, suggesting that alienation claims of any kind are no longer recognized. Compare id. (holding that father could recover for "loss of minor child's society and companionship"), with 740 ILL. COMP. STAT. ANN. [section] 5/7.1 (West 2016) (repealing Illinois' alienation statute).

(298.) Hershey, 467 N.W.2d at 489.

(299.) See id. ("We need not and do not reach the question of whether Father also states a cause of action for intentional infliction of emotional distress or tortious interference with the parent[-]child relationship.").
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Author:Bangasser, Jordyn L.
Publication:South Dakota Law Review
Date:Mar 22, 2017
Words:24711
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