The alienation of affection cause of action was a creation of United States courts derived from the early common-law action for abduction of the wife. In its earlier form, the mere removal of the wife gave rise to the presumption that a causal connection existed between the wife's abduction and the alienation of her affection because the wife was the husband's property and thus she could not consent to her own removal.
In time, the removal requirement was eliminated in the alienation of affection action; thus, in order to recover damages, the plaintiff was required to show the causal connection between the defendant's acts and the alienation. Courts recognized that factors other than the defendant's conduct could contribute to the alienation of a spouse's affection. Consequently, courts in different jurisdictions applied various causation standards to actions for alienation of affection--attesting to the difficulty in sorting out causation and basing liability thereon. At one end of the spectrum, a few jurisdictions adopted a "contributory cause" standard whereby a defendant would be liable if his or her conduct merely contributed to the alienation. This standard was particularly tough on the defendant because any wrongful conduct on the defendant's part would render the defendant liable. The other end of the spectrum espoused the "sole cause" standard--the plaintiff had to show that the defendant was the only cause of the alienation--which made the burden of proof nearly impossible for the plaintiff to meet. The majority of jurisdictions applied the "controlling cause" approach. Controlling cause "means that the causal effect of the defendant's conduct must have outweighed the combined effect of all other causes, including the conduct of the plaintiff spouse and the alienated spouse." Leading to the abolition or restriction of the alienation of affection cause of action in a majority of states was the view that this standard was "simplistic and inadequate to help the trier of fact sort out causation in an area where psychologists have asserted that causation cannot be sorted out." Thus, the potential for abuse existed in that the trier of fact could hold a defendant responsible "because his or her conduct had been 'wrongful' or morally reprehensible."
The same problem is inherent in parental alienation cases. Where causation is difficult--if not impossible--to sort out, the trier of fact may erroneously assign responsibility for the alienated affections of a child solely to the child's mother...
Who's alienating who?
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