A Remedy to Fit the Crime: A Call for the Recognition of the Unreasonable Rejection of a Parent by a Child as Tortious Conduct

Abstract

This article provides a simple discussion of an on-going problem which has struck a nerve with many members of our society; the phenomenon of parental alienation. “Parental alienation” in this paper is defined as the unreasonable rejection of a formerly loved and respected parent by a child, where such rejection has been fostered by a campaign of sometimes subtle denigration of the rejected parent by the custodial parent, which has destroyed the parent-child relationship. While scholars and mental health professionals have been engaging in bitter debates about the legal admissibility of a diagnosis of parental alienation or even the existence of phenomenon, Courts have struggled with what to do when one parent clearly has engaged in behavior which has irreparably damaged the rights of the other parent to know and raise their child.

This Article points out that the right to parent has been deemed a substantively fundamental right under the Constitution, yet Courts typically refuse to provide the rejected parent with an adequate remedy for the interference by one parent in the relationship of the other parent and a child of the parties. Deemed one of the most important and personal rights a person may enjoy, the premise of this paper is that the law should protect that right by balancing the needs of children and the rights of parents, supporting a cause of action in tort for the unreasonable rejection of a parent against an offending parent when all other Court ordered interventions have failed.

Keywords: parental alienation, rejection, tort, family, constitution, custody, visitation, access, possession