To date, six states have judicially abolished alienation of affections on some or all of these grounds.
South Dakota is one of six states that still allows actions for alienation of affections in its courts.
ALIENATION OF AFFECTIONS' LOVE-CHILD: ALIENATION OF A CHILD'S AFFECTIONS
Given alienation of affections' beginnings in the amorous scandals between husbands and wives, it may seem strange that this cause of action would serve as the "parent" tort for what came to be known as alienation of a child's affections.
(68) Faced with this phenomenon, civil courts tried to fit parental alienation cases into the scope of existing tort law, including alienation of affections. (69) Within this attempted marriage between parental alienation and alienation of affections, alienation of a child's affections began to appear in court opinions.
Jacobsen, 669 P.2d 1207, 1216 (Utah 1983) ("Similarly, a suit for alienation of affections does not attempt to 'preserve' or 'protect' a marriage from interference, but only to compensate a spouse who has suffered loss and injury to his or her marital relationship through the intentional interference of a third party.").
(278.) See, e.g., O'Neil, 733 P.2d at 698 ("The action for alienation of affections purportedly exists to discourage third persons from weakening marriages.
at 1995 ("The closeness between these other areas of law and alienation of affections demonstrates that tort remedies are properly employed as adultery-remedying tools.").
(321.) This question is different from whether an action for criminal conversation can occur absent penile-vaginal intercourse, see supra note 39, and whether homosexual conduct can sustain an action for alienation of affections, cf.
(145) For example, opponents of same-sex marriage who favor the tort of alienation of affection create a moral dilemma.
In South Dakota, this cause of action can be brought against one who seduces a spouse by using the alienation of affection tort and when a valuable interest in the marriage is lost due to the adulterous activity.
If a sexual relationship occurs between two married individuals of the same gender, however, it is unclear whether there would be a cause of action for alienation of affection. (239) Although South Dakota law does not clearly state whether there would be a cause of action, the elements seem to suggest that there could still be a cause of action for alienation of affection.