Family Law: Parental Duties & Rights: Care & Control of Children
Under the common law, a person who compels or induces a minor child to leave his or her home or to not return to his or her home is liable to the parent of the minor child for damages. The parent who is legally entitled to custody of the minor child is entitled to file an action against the person.
In order to be liable for this tort, a person who causes a minor child to leave home must know that the child's parent has not consented to the child's leaving his or her home. In other words, the person must know that the child is away from his or her home against the will of the parent. If the person has forcefully abducted the child from his or her home, the fact that the child's parent has not consented to the child's leaving his or her home is not an issue.
A person who causes a minor child to leave home is liable whether he or she abducts the child from his or her home, from his or her school, or from any other place where the child's parent has sent the child. The person is also liable if he or she induces the child to not return to his or her home by giving the child employment or some other incentive. However, if the person merely provides food and shelter to the child, even if he or she knows that the child left his or her home without his or her parent's permission, the person is not liable for damages.
If only one parent is entitled to custody of his or her child, only that parent may maintain an action against a person for causing the child to leave home. If both parents are entitled to joint custody of their child, the one parent cannot bring an action against the other parent for causing the child to leave home. However, if the one parent is entitled to sole custody of the child, that parent may bring an action against the other parent for causing the child to leave home.
The tort action of causing a minor child to leave home is based on a parent's right to be with his or her child. Damages are based on the parent's loss of society with his or her child and the parent's emotional distress. Damages are not based on the parent's loss of services from his or her child. A parent is entitled to the action, even if his or her child is too young to perform any services on behalf of the parent. However, if the child did in fact perform services on behalf of the parent, the parent may be entitled to damages for the loss of those services. The parent may also be entitled to damages for his or her reasonable expenses in regaining custody of the child or in treating the child if the child was injured as a result of the other person's actions.
If a person rescues a child from a parent's physical violence, the person is not liable to the parent for having caused the child to leave home. However, the person must prove that the parent's physical violence was excessive and that the child would have been subjected to immediate harm if he or she returned home. This exception normally applies to persons who are authorized by law to remove children from their parents. The exception does not normally apply to private persons.
A person who marries a child is not liable to the child's parent for causing the child to leave home. This exception applies even if the marriage between the person and the child is voidable or could be annulled as a result of the child's being underage.