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Intrafamily Immunity

Fairfax Injury Lawyer Brien Roche Addresses Intrafamily Immunity

Brien Roche

Intrafamily and Interspousal Immunity

Virginia, in general, has abolished the defense of interspousal immunity for tort actions.  What that means is that one spouse may sue another spouse. The action may be for negligence or intentional conduct causing injury. 

Divorce of course ends any immunity that may have existed.

Intrafamily immunity does exist to bar a claim by a child against a parent. This applies to negligence in non-auto and non-business related cases. It likewise applies to intentional torts against a child. At least in those cases where the child does not die and is not emancipated.

The idea of intrafamily immunity arises from the concept that it is better to preserve family peace than to allow lawsuits.

However that notion is somewhat out of date. Insurance coverage is everywhere. The need for injured persons to be able to fully recover is important. Immunity was founded on the notion that the family is a unit. Nothing can interfere with that unit. That notion is still alive and well. However money talks. These claims are just about money.

Intra Family Immunity, Marital Torts and Divorce

Marital torts are seen most often in intentional torts. That is one spouse assaults another. There may be resulting physical harm, psychological harm, or emotional harm.

In deciding whether to pursue such a claim one of the first problems is can you join the tort action with the divorce action.  That becomes a procedural issue that is subject to state law. If asserted within the context of the divorce action in Virginia then the divorce court cannot award money damages for the injury. It may consider the marital tort in the context of alimony. Also it may factor it in for the equitable distribution of marital assets.If such relief is awarded in the divorce case then the injured spouse can still pursue a separate civil action for the tort claims.

The full range of damage may be claimed in that civil action. Such may include post-traumatic stress disorder and emotional or physical injuries.

In presenting the emotional or psychological claims you may need a mental health expert as a witness.  You must be able to show the emotional impact. A sympathetic psychologist or psychiatrist can help. The use of analogies to explain exactly what the plaintiff has gone through may help the jury empathize. Call, or contact us for a free consult.

Intra Family Immunity and Parental Rights

Parental rights are well guarded in Virginia. The Virginia Supreme Court in the case of Wyatt v. McDermott, held that a natural father could assert a claim against third parties for tortious interference with parental rights. The interference occurred in the course of pursuing an adoption of that father’s child.  The Court noted that the parent child relationship is a valuable right. That right has a basis in the constitution.

The elements of the claim are a right to the parental relationship, the third party intentionally interfered causing harm to the relationship and resulting damage.
The damages that the Court found allowable were both tangible and intangible. They included out of pocket expenses incurred in seeking recovery of the child and loss of services. The intangible losses were loss of companionship and mental anguish.

Punitive damages could also be claimed.

The Court did note that the claim probably would not be allowed against the other parent. At least if both parents have much the same custodial rights. In addition if the other parent can show the interference was needed to protect the child that would be reason not to allow the claim.

Call, or contact us for a free consult. See intrafamily immunity for a review of Virginia case law on this subject. See also the pages on Wikipedia.

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Intrafamily Immunity

Fairfax Injury Lawyer Brien Roche Addresses Intrafamily Immunity

Brien Roche

Intrafamily and Interspousal Immunity

Virginia, in general, has abolished the defense of interspousal immunity for tort actions.  What that means is that one spouse may sue another spouse. The action may be for negligence or intentional conduct causing injury. 

Divorce of course ends any immunity that may have existed.

Intrafamily immunity does exist to bar a claim by a child against a parent. This applies to negligence in non-auto and non-business related cases. It likewise applies to intentional torts against a child. At least in those cases where the child does not die and is not emancipated.

The idea of intrafamily immunity arises from the concept that it is better to preserve family peace than to allow lawsuits.

However that notion is somewhat out of date. Insurance coverage is everywhere. The need for injured persons to be able to fully recover is important. Immunity was founded on the notion that the family is a unit. Nothing can interfere with that unit. That notion is still alive and well. However money talks. These claims are just about money.

Intra Family Immunity, Marital Torts and Divorce

Marital torts are seen most often in intentional torts. That is one spouse assaults another. There may be resulting physical harm, psychological harm, or emotional harm.

In deciding whether to pursue such a claim one of the first problems is can you join the tort action with the divorce action.  That becomes a procedural issue that is subject to state law. If asserted within the context of the divorce action in Virginia then the divorce court cannot award money damages for the injury. It may consider the marital tort in the context of alimony. Also it may factor it in for the equitable distribution of marital assets.If such relief is awarded in the divorce case then the injured spouse can still pursue a separate civil action for the tort claims.

The full range of damage may be claimed in that civil action. Such may include post-traumatic stress disorder and emotional or physical injuries.

In presenting the emotional or psychological claims you may need a mental health expert as a witness.  You must be able to show the emotional impact. A sympathetic psychologist or psychiatrist can help. The use of analogies to explain exactly what the plaintiff has gone through may help the jury empathize. Call, or contact us for a free consult.

Intra Family Immunity and Parental Rights

Parental rights are well guarded in Virginia. The Virginia Supreme Court in the case of Wyatt v. McDermott, held that a natural father could assert a claim against third parties for tortious interference with parental rights. The interference occurred in the course of pursuing an adoption of that father’s child.  The Court noted that the parent child relationship is a valuable right. That right has a basis in the constitution.

The elements of the claim are a right to the parental relationship, the third party intentionally interfered causing harm to the relationship and resulting damage.
The damages that the Court found allowable were both tangible and intangible. They included out of pocket expenses incurred in seeking recovery of the child and loss of services. The intangible losses were loss of companionship and mental anguish.

Punitive damages could also be claimed.

The Court did note that the claim probably would not be allowed against the other parent. At least if both parents have much the same custodial rights. In addition if the other parent can show the interference was needed to protect the child that would be reason not to allow the claim.

Call, or contact us for a free consult. See intrafamily immunity for a review of Virginia case law on this subject. See also the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation