Minn. Stat. § 518.18

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Public Policy: In analyzing the important public policies raised by this case, we should consider, inter alia, the following factors: a.) respect for unappealed court orders regarding custody; b.) a recognized need for compensation; c.) historical developments in related tort law; d.) the moral aspects of the defendant's conduct; and e.) the prevention and punishment aspects of liability. See W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts § 4, at 20-26 (5th ed.1984). Larson was deprived of his parental rights for seven years in clear violation of the custody decree. Similarly, Jessica was denied the right to a relationship *48 with her father during a critical stage in her development. Although this precious lost time can never be regained, some form of redress undoubtedly is in order. Tort law long has protected "relational" interests, such as between family members, from interference. Prosser & Keeton, supra, § 124, at 915; see, e.g., In re Parks, 267 Minn. 468, 127 N.W.2d 548 (1964); Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543 (1949) (holding child could bring action for enticement of parent). In 1978, however, our legislature abolished alienation of affection and other "heart balm" actions because they "have been subject to grave abuses." Act of March 23, 1978, ch. 515, §§ 1, 2, 1978 Minn.Laws 141, 141, codified at Minn. Stat. §§ 553.01; 553.02 (1988); see Bock v. Lindquist, 278 N.W.2d 326, 327 (Minn.1979) (refusing to recognize a cause of action by a parent against relatives for alienation of a child's affections). These limitations are distinguishable because, with the custody tort, "the interference with family relations is accomplished by means of some independent tort, such as fraud * * *." Prosser & Keeton, supra, § 124, at 930; see Restatement (Second) of Torts § 699 (1977) ("Restatement") (parent has no action for mere alienation of child's affections). Indeed, Larson also pleaded fraud as a cause of action and, in support of the interference action, claims the Rigenhagens and Olson gave fraudulent information to authorities and in court documents. This litigation has precipitated bitter accusations and contradictory affidavits. Unfortunately, such personal disputes are common today and the parent-child relationship is increasingly threatened by family members. Cf. Anderson v. Stream, 295 N.W.2d 595, 601 (Minn.1980) (abolishing parent-child immunity). Child abduction has become a recurring scenario on the family law landscape, and such situations, where the parties' actions are motivated by runaway emotions, have evolved into a disturbing social trend. Indeed, about 100,000 to 750,000 parental child kidnappings occur each year, and the abducting parent often is aided by relatives and friends. Larson, 449 N.W.2d at 754 (citing authority). The Rigenhagens argue tort liability will have little deterrent effect where, as here, the alleged interferers believe their actions were "morally right." Loree Dunn, however, neither appealed the custody order nor petitioned for a change of custody, as is required once custody has been established, Morey v. Peppin, 375 N.W.2d 19, 25 (Minn.1985), but instead fled the state with Jessica. The custody decree vests the custodial parent with certain rights, including the right to determine the child's upbringing, education, health care, and religious training. Minn. Stat. §§ 518.003, subd. 3(a); 518.176, subd. 1 (1988). These rights should be legally protected against intentional interference. See Minn. Const. art. 1, § 8 (everyone entitled to remedy for wrongs to "person, property or character"). No party is above the law and resort to such self-help measures is not justified. As the majority notes, the legal system may not be the best arena to settle personal, family disputes. Yet, the familial relationships were already wounded by the divorce and kidnapping before this action was brought. Depriving the victimized parent of a forum for redress, then, will not necessarily promote the family's healing. Further, a parent's right to custody has been likened to a constitutional inalienable right. State v. Whaley, 246 Minn. 535, 547-48, 75 N.W.2d 786, 794 (1956). Not only is the conduct alleged in violation of this right particularly egregious, but it was done in arrogant defiance of the sanctity of court orders. The majority does not indicate how best interests of the child are served by condoning this type of activity. State legislatures have responded to this crisis by enacting the UCCJ, designed to prevent kidnapping aimed at forum shopping in hopes of gaining custody of the child. See Minn. Stat. § 518A.01 (1988). Redress also has been initiated at the federal level. See Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, 94 Stat. 3566 (codified in scattered sections of 18, 28 & 42 U.S.C.); 18 U.S.C.A. § 1073 (West 1976 & Supp.1989) (criminal penalty for parental kidnapping). Under Minnesota's current criminal code, to which Dunn *49 apparently pleaded guilty, it is a felony to intentionally deprive another of custodial or parental rights. Minn. Stat. § 609.26 (1988 & Supp.1989). The statute, however, only provides for a discretionary award of costs incurred in recovering the child and does not allow compensation for other damages resulting from the kidnapping. Id. at subd. 4. This court, however, is in a position to fill the gaps left by the laws in this area. See Prosser & Keeton, supra, § 3, at 19. The judiciary has broad discretion to protect custodial and visitation rights. See Minn. Stat. § 518.175, subd. 3 (custodial parent may not move child out-state if intent is to interfere with visitation rights) & subd. 4 (contempt of court for unwarranted denial of or interference with visitation rights) (1988); id. at § 518.176 (judicial supervision of custody and visitation terms); see, e.g., Tischendorf v. Tischendorf, 321 N.W.2d 405, 412 (Minn.1982) (approving requirement that noncustodial parent post bond and provide transportation for adult companion to secure return of child to custodial parent after foreign visits), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983). By limiting the frequency and circumstances under which custodial modification may be made, the legislature acknowledges the importance of maintaining a consistent and stable custody situation. See Minn. Stat. § 518.18 (1988). The fact that alienation of affection actions are not viable does not "diminish[] other remedies for interference with familial relationships * * *." Bock, 278 N.W.2d at 328. Indeed, liability for custodial interference appears to be the national trend. Larson, 449 N.W.2d at 755 n. 3 & 4.[1] The unifying thread running through these cases is the tacit recognition that a parent has an enforceable interest in the care and custody of a minor child.

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Father’s pro se motion to modify custody appears to be an endangerment-based motion. Under the relevant statute, custody and parenting plans may be modified if the existing custodial arrangement “endangers” the children. Minn. Stat. § 518.18(d)(iv) (2006). A moving party is to submit an affidavit reciting the facts supporting the party’s motion to modify custody. Minn. Stat. § 518.185 (2006). A party seeking an endangerment-based modification of custody

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In order to modify custody, where the custodian has not agreed to modification or the child has not been integrated into the family, Minn. Stat. § 518.18, subd. d(iii) (1996), requires a determination that “[t]he child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”

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