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

• Author: Bangasser, Jordyn L.

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.

1. 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)

2. 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)

3. 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...