Missing the Mark: Alienation of Affections as an Attempt to Address Parental Alienation in South Dakota

By Bangasser, Jordyn L. | South Dakota Law Review, Spring 2017 | Go to article overview

Missing the Mark: Alienation of Affections as an Attempt to Address Parental Alienation in South Dakota


Bangasser, Jordyn L., South Dakota Law Review


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. …

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