No Civil Conspiracy Without an Independently Actionable Predicate; Interference with Parental Rights Requires Actual Removal from Custody

Case: Amy Kissinger-Stankevitz v. Town of Tappahannock, et al.

Court: United States Court of Appeals for the Fourth Circuit (unpublished)

Date: October 31, 2025

Author: Judge Wynn (joined by Judges Niemeyer and Quattlebaum)

Introduction

This unpublished Fourth Circuit decision applies and clarifies key features of Virginia common-law civil conspiracy. The court affirms dismissal of civil conspiracy claims brought by Amy Kissinger‑Stankevitz and her minor child against a wide cast of defendants—her ex‑husband (David Bailey), his parents, his lawyer, a police officer, a social services specialist, the local Commonwealth’s Attorney, and the Town of Tappahannock—arising from a fraught divorce and custody saga and allegations of sexual abuse of the child.

Two legal questions drive the opinion:

What counts as a “predicate act” for Virginia common-law civil conspiracy—specifically, can purely criminal statutes with no private right of action serve as the underlying wrong?
What are the essential elements of tortious interference with parental rights in Virginia, and does it require the child’s actual removal from the parent’s custody?

The court answers both decisively under Virginia law: (1) a civil conspiracy claim cannot proceed unless the predicate act independently imposes civil liability on the primary wrongdoer; crimes that do not create a private right of action will not do, even where the alleged conspiracy sought a “lawful purpose by unlawful means.” (2) The tort of interference with parental rights requires actual removal or detention interfering with custody; mere litigation burdens and temporary disruptions, without loss of custody, are insufficient.

Summary of the Opinion

Applying Virginia law de novo on a Rule 12(b)(6) dismissal, the Fourth Circuit affirms. The court reiterates that common-law civil conspiracy in Virginia is not a stand-alone tort; it is a vehicle to extend liability for damages caused by an independently actionable underlying wrong. Three alleged predicate “wrongs”—criminal destruction of a record (Va. Code § 18.2‑472), criminal perjury (§ 18.2‑434), and criminal barratry (§ 18.2‑452)—cannot sustain civil conspiracy because they are crimes with no private civil cause of action.

The plaintiffs’ fourth proposed predicate—tortious interference with parental rights—does create civil liability in Virginia. But the claim fails on the pleadings because, as the Supreme Court of Virginia has made clear and the Fourth Circuit emphasizes here, that tort requires that the child be removed from the parent’s custody or detained so as to prevent the parent from exercising parental rights. On the pleaded facts, Ms. Kissinger‑Stankevitz retained physical custody throughout; the conspirators’ alleged attempts to alter custody failed. Consequently, there is no actionable predicate tort, and the civil conspiracy claims were properly dismissed.

Analysis

Precedents Cited and Their Influence

Hechler Chevrolet, Inc. v. General Motors Corp., 337 S.E.2d 744 (Va. 1985): Hechler defines civil conspiracy in Virginia as concerted action by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Plaintiffs often point to this “lawful purpose by unlawful means” prong to argue that any illegality can suffice as the predicate. The Fourth Circuit correctly notes that Hechler did not hold that a violation of a statute without a private right of action could support a civil conspiracy claim; the Virginia Supreme Court did not reach that issue there.

Almy v. Grisham, 639 S.E.2d 182 (Va. 2007): Almy distinguishes civil conspiracy from criminal conspiracy by stressing that civil conspiracy requires a completed underlying wrong; it is not inchoate. This anchors the requirement that the plaintiff must show a completed, actionable predicate tort or wrong.

La Bella Dona Skin Care, Inc. v. Belle Femme Enters., LLC, 805 S.E.2d 399 (Va. 2017): This decision is the fulcrum of the Fourth Circuit’s analysis. La Bella Dona states unequivocally that “an action for civil conspiracy will not lie unless the predicate unlawful act independently imposes liability upon the primary wrongdoer.” In other words, the predicate must itself be actionable by the plaintiff as a civil claim. The Fourth Circuit treats this as dispositive and rejects the plaintiff’s attempt to evade it by reframing the conspiracy as “lawful purpose by unlawful means.” La Bella Dona draws no such distinction—either way, the underlying “unlawful means” must be an independently actionable civil wrong.

Virk v. Clemens, 904 S.E.2d 651 (Va. Ct. App. 2024): The plaintiff cited Virk for the proposition that a civil conspiracy can be grounded in “tortious or unlawful” conduct, suggesting that proof of a crime might suffice even without a private right of action. The Fourth Circuit acknowledges the facial appeal of that language but notes that Virk ultimately held the pleading was insufficient. More importantly, Virk is an intermediate appellate decision that cannot supersede the Virginia Supreme Court’s clear rule in La Bella Dona. The court rightly treats Virk as a “thin reed” unable to overcome controlling precedent.

Wyatt v. McDermott, 725 S.E.2d 555 (Va. 2012): Wyatt recognized the tort of interference with parental rights in Virginia. It articulates the state’s protection of the common-law right to establish and maintain a relationship with one’s child, importing Restatement (Second) of Torts § 700. Wyatt provides the doctrinal basis for using this tort as a potential civil conspiracy predicate where the facts fit.

Padula-Wilson v. Landry, 841 S.E.2d 864 (Va. 2020): Padula‑Wilson tightens the elements and makes explicit that the interference tort “applies only” to situations involving removal, detention, or inducement of a child to leave or not return to the parent with custodial rights. The Fourth Circuit leans on Padula‑Wilson to reject the plaintiff’s interference theory because her child was never actually removed from her custody.

Restatement (Second) of Torts § 700 (1977): Quoted through Padula‑Wilson, this provision emphasizes that the wrong is “abducting or otherwise compelling or inducing a minor child to leave” the custodial parent or not to return. This framing forecloses theories based solely on litigation burdens, reputational harm, or transient interference absent removal or detention.

Procedural standards: The court recites two familiar principles: (1) facts are taken in the light most favorable to the plaintiff at the motion‑to‑dismiss stage (Balogh v. Virginia, 120 F.4th 127 (4th Cir. 2024)); and (2) dismissals under Rule 12(b)(6) are reviewed de novo (Kashdan v. George Mason Univ., 70 F.4th 694 (4th Cir. 2023)). These standards frame the analysis but do not alter the substantive state-law requirements.

The Court’s Legal Reasoning

1) Civil conspiracy requires a predicate act that independently imposes civil liability

The court begins with an uncontested proposition under Virginia law: Civil conspiracy is not actionable “in its own right”; rather, it extends liability among co-conspirators for damages produced by an underlying wrongful act. The plaintiff therefore had to plead at least one predicate act that itself creates a private right of action and is complete and actionable.

Three alleged predicates fail categorically because they are crimes without private civil redress: criminal destruction of a record (Va. Code § 18.2-472), criminal perjury (§ 18.2-434), and criminal barratry (§ 18.2-452). The opinion is careful and narrow: it does not decide whether “crimes can never be predicates” for civil conspiracy; instead, it applies La Bella Dona’s requirement that the predicate must independently impose civil liability. If a criminal statute also carries a civil cause of action (or the same conduct corresponds to a recognized tort), the predicate might suffice. But where the criminal prohibition provides no private right of action, it cannot support a civil conspiracy claim.

The court rebuffs an attempted doctrinal end-run: the plaintiff argued that because Virginia recognizes conspiracy “to accomplish a lawful purpose by unlawful means,” the “unlawful means” need not be a separate actionable tort. The Fourth Circuit explains that La Bella Dona draws no such dichotomy—regardless of the conspiracy’s ultimate purpose, the predicate “unlawful means” must be conduct that independently creates civil liability.

Virk’s “tortious or unlawful” language does not change the analysis. First, Virk did not ultimately find any sufficient predicate on its facts. Second, in the Erie posture, a federal court applying state law follows the state’s highest court; intermediate appellate dicta cannot displace the Supreme Court of Virginia’s clear statement in La Bella Dona.

2) Tortious interference with parental rights: actual removal or detention is required

Of the plaintiff’s four proposed predicates, only tortious interference with parental rights could, in the abstract, meet the La Bella Dona standard—because it is a recognized Virginia tort (Wyatt; Padula‑Wilson).

But Padula‑Wilson crystallizes the claim’s elements. To plead interference with parental rights, the plaintiff must show that:

She had the right to establish or maintain a parental or custodial relationship with the child;
An outsider intentionally interfered by removing or detaining the child from returning, without the parent’s consent, or otherwise prevented exercise of parental or custodial rights;
The interference caused harm to the parental relationship; and
Damages resulted.

The key feature—drawn from Restatement § 700 and expressly emphasized by Padula‑Wilson—is that the tort “applies only” when the defendant abducts, compels, or induces the child to leave the custodial parent or not to return. Here, the plaintiff expressly conceded that the “attempts to take custody away from [her] were ultimately unsuccessful.” She maintained physical custody throughout. Even taking the allegations as true, prolonged and stressful litigation does not substitute for the required removal or detention of the child. Without that essential element, the interference tort cannot be a viable predicate.

Impact and Practical Significance

A. Pleading strategy in Virginia civil conspiracy cases

The opinion sharply reinforces a gatekeeping function for civil conspiracy claims under Virginia law:

Alleging “illegal” or “criminal” conduct is not enough. The plaintiff must tether the conspiracy to an independently actionable civil claim—one that supplies its own elements and private right of action.
Criminal code citations (e.g., perjury, barratry, destruction of records) are not surrogate civil predicates unless Virginia law separately recognizes a civil cause of action for the same conduct.
Plaintiffs should focus on recognized Virginia torts (e.g., malicious prosecution, abuse of process, defamation, intentional infliction of emotional distress, tortious interference with parental rights—where the elements are met) or statutes that expressly provide private remedies.

The upshot: A conspiracy count lives or dies with the underlying tort. Absent that predicate, conspiracy is not an independent route to liability.

B. Family-law-adjacent torts: a narrowed lane for interference with parental rights

For disputes orbiting custody or visitation, the opinion underscores that tortious interference with parental rights remains a narrow, Restatement-driven claim. It is not a catch-all for litigation misconduct or coordinated reputational attacks during custody fights. Unless the child is actually removed, detained, or induced not to return to the custodial parent, the tort is unavailable.

Litigants alleging misuse of legal process in custody battles may need to consider other torts (e.g., abuse of process or malicious prosecution, subject to their demanding elements) rather than interference with parental rights. The interference tort turns on the status and possession of the child, not on the burdens of the proceeding itself.

C. “Lawful purpose by unlawful means” does not relax the predicate requirement

The decision closes a potential interpretive loophole: some plaintiffs have argued that because Virginia recognizes conspiracies to achieve lawful objectives by unlawful means, any unlawful act—including crimes with no civil remedy—can serve as the predicate. This opinion, channeling La Bella Dona, makes clear that both branches of the Hechler definition (unlawful purpose; lawful purpose by unlawful means) are subject to the same threshold requirement: the “unlawful” conduct must be independently civilly actionable.

D. Practical consequences for public-actor defendants and municipalities

Although the court did not decide immunity issues, its predicate-tort requirement often will be dispositive in cases involving public actors. Where plaintiffs aim to enlist civil conspiracy to reach police officers, social workers, or prosecutors (and municipalities derivatively), the absence of an independently actionable predicate tort will end the case at the pleading stage, without the court needing to reach immunity doctrines. Plaintiffs must therefore plead and be able to prove an underlying civil claim recognized by Virginia law, fully and plausibly, before conspiracy theories will even be considered.

E. Federalism and the Erie framework

The court’s treatment of Virk v. Clemens is a textbook example of Erie deference. Federal courts applying state law must follow the state’s highest court when it has spoken. Even if intermediate state appellate decisions contain broader language suggesting that “unlawful conduct” alone suffices, La Bella Dona’s authoritative rule controls: the predicate must independently impose civil liability. This keeps federal and state courts aligned on the core structure of Virginia conspiracy law.

Complex Concepts Simplified

Civil conspiracy (Virginia common law): A mechanism to extend liability for damages caused by an underlying wrong to those who agreed and acted together. It is not a standalone tort—there must be an actionable predicate.
Predicate act: The underlying wrongful act that caused the plaintiff’s damages. In Virginia conspiracy law, it must be a wrong that independently gives the plaintiff a civil cause of action (i.e., a private right to sue).
Private right of action: The legal ability of a private individual to sue for violation of a law. Some criminal statutes punish conduct but do not authorize private lawsuits for damages; such statutes cannot, by themselves, serve as the predicate for a civil conspiracy claim.
“Lawful purpose by unlawful means”: One way to conceptualize conspiracy—actors agree to achieve a goal that is not itself illegal, but they use illegal methods to achieve it. Under this opinion, the “unlawful means” still must be conduct that independently gives rise to civil liability.
Tortious interference with parental rights: A Virginia tort recognized in Wyatt and refined in Padula‑Wilson. It targets outsiders who abduct, detain, or induce a child to leave or not return to the custodial parent, thereby depriving the parent of custody or the ability to exercise custodial rights. It requires actual removal or detention, not just stressful or lengthy litigation.
Barratry (criminal): The persistent instigation or encouragement of groundless litigation. In Virginia, it is criminalized, but there is no general private civil cause of action for “barratry.”
Perjury (criminal): Lying under oath. Virginia criminalizes perjury, but Virginia does not provide a general private cause of action for damages arising from perjury itself.
Destruction of a record (criminal): Destroying or altering public records is criminal conduct under Virginia law; standing alone it does not create a private civil claim unless another civil theory applies (e.g., spoliation sanctions are procedural, not a separate tort in Virginia).

Conclusion

The Fourth Circuit’s unpublished decision delivers two crisp holdings under Virginia law. First, a Virginia common-law civil conspiracy claim cannot go forward unless it is anchored to a predicate act that itself supports civil liability; mere criminality is not enough. That rule applies regardless of whether the alleged conspiracy pursued an unlawful purpose or a lawful purpose by unlawful means. Second, the tort of interference with parental rights remains tightly cabined: it requires actual removal or detention of the child that prevents the parent from exercising custodial rights. Protracted litigation and even severe emotional strain do not satisfy that element where the parent retains custody.

The opinion’s practical message is unmistakable. For civil conspiracy, start with a viable, independently actionable tort and plead it fully. For interference with parental rights, focus on whether the child was, in fact, removed or detained away from the custodial parent. Without those foundations, conspiracy theories—no matter how evocatively pleaded—cannot survive Rule 12(b)(6).

Although unpublished and not precedential in the Fourth Circuit, the decision faithfully applies controlling pronouncements of the Supreme Court of Virginia (especially La Bella Dona and Padula‑Wilson). It will be persuasive authority in federal and state courts alike on the rigor of Virginia’s predicate‑act requirement for civil conspiracy and the narrow scope of parental-interference torts.