Does a third party have a right of action against a parent for wilful and malicious tort?

Respondent argues that section 49 of the Civil Code, which forbids abduction of a child from a parent, could only give a right to the parent entitled to custody. He cites Rudley v. Tobias, 84 Cal.App.2d 454, 190 P.2d 984, in which it was held that a child does not have a cause of action against a woman who maliciously entices the father from the household. This holding was based on the 'heart balm' legislation of 1939, which, among other things, deleted from section 49 the declaration that among the acts contrary to the rights of personal relations was '[t]he abduction * * * of a parent from his child.' The case before us is not one of abduction of a parent, but abduction of the child, brought against an alleged participant in the abduction. In the case of the parent's 'abduction,' an element of consent of a responsible person, the parent, is present; in the case of the child's particularly one of the age of 2 1/2, there is no such consent. Respondent here has not, as did defendant in the Rudley case, taken the affections of the parent from the child; indeed, her complaint alleges that she has gone to much expense in trying to regain her daughter.

Also distinguishable is Haldane v. Bogy, 208 Cal.App.2d 298, 25 Cal.Rptr. 392, in which plaintiff had been deprived of the custody of the children by previous decree of the court, but attempted to bring action on their behalf. The action was considered, apparently, as an alienation of affections case.

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A child has a right of action against its parent for a wilful and malicious tort. (Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218.) If there is not parental immunity for such a wrong, surely there is none for a third party.