The issue in this case is whether a cause of action for intentional interference with custody and visitation rights is sustainable by a father, Michael Shannon, against his former wife, Nermeen Khalifa Shannon, and her mother, Afaf Nassar Khalifa (“Appellants”), both of whom fled to Egypt with the couple's two minor children, who remain there.

The tort of interference with custody and visitations rights is recognized in Maryland.

I. Facts

 Michael Shannon initiated the instant civil suit against his ex-wife, Nermeen Khalifa Shannon, her mother, Afaf Nassar Khalifa, her father, Mohammed Osama Khalifa, and her older sister, Dahlia Khalifa, in March of 2004. The Complaint contained four counts: Count I, Interference with Custody and Visitation Rights of Children; Count II, Civil Conspiracy; Count III, Loss of Society of Children; and Count IV, False Imprisonment, with the following factual allegations:

 8. Mr. Shannon married Defendant Nermeen Khalifa Shannon on March 3, 1996.

9. Adam Osama Shannon was born on February 9, 1997.

10. Jason Osama Kalifa [sic] was born on January 10, 2001.

11. Mr. Shannon and defendant Nermmen Khalifa Shannon separated in January 2000.

12. In February 2001 this Court entered a consent order that granted Mr. Shannon custody of Adam; and Nermeen custody of Jason.

13. Each parent also had visitation rights with their non-custodial child.

14. On August 18, 2001, Defendant Afaf Nassar Khalifa flew to Washington, D.C. from Egypt and stayed with Nermeen Shannon in her apartment.

15. Mr. Shannon agreed that both boys could visit a cousin in Brooklyn, New York with Defendants, Nermeen Khalifa Shannon and Afaf Nassar Khalifa, as long as the boys were returned to him by Sunday night, August 26, 2001.

16. The boys were not returned to Maryland.

17. The Defendants had previously and calculatedly arranged to put the boys on an airplane to Egypt.

18. The Defendants did put the boys on an airplane to Egypt and Mr. Shannon has not seen his American sons since August 2001.

19. Defendant, Afaf Nassar Khalifa was extradited to Maryland.

20. Defendant, Afaf Nassar Khalifa was sentenced to a ten year prison term. That sentence was later revised to a three year sentence.

21. The abductions and kidnapping [sic] of the children are ongoing.

 23. At the time of the abductions. Mr. Shannon was legally entitled to custody of Adam and visitation with Jason.

24. The Defendants intentionally interfered, and continue to interfere with Mr. Shannon's custody and custody [sic] and visitations rights by abducting the children to Egypt and refusing to return them.

25. The Defendants intentionally interfered, and continue to interfere with Mr. Shannon's custody and visitation rights by knowingly and intentionally refusing to allow Mr. Shannon to see or communicate in any manner with his sons.

As a result of the Defendants' ongoing and continuing intentional interference with Mr. Shannon's custody and visitation rights, Mr. Shannon has suffered damages.

The case went to trial in December of 2006. At the close of argument, the court dismissed the false imprisonment and loss of society counts. After deliberating over the remaining counts of interference with custody and visitation rights and civil conspiracy and completing a special verdict form, the jury awarded Shannon $17,500 in attorney fees and costs; $500,000 in compensatory damages against each defendant; $900,000 in punitive damages against Afaf Nassar Khalifa and $1,100,000 million in punitive damages against Nermeen Khalifa Shannon. Appellants moved for a judgment notwithstanding the verdict, a new trial, and for remittur, arguing grossly excessive damages, all of which the Circuit Court denied. Appellants noted their appeal to the Court of the Special Appeals, and we issued a writ of certiorari prior to any proceedings in the intermediate appellate court. Khalifa, 400 Md. at 647, 929 A.2d at 889.

 This case presents issues regarding whether the tort of interference with custody and visitation rights exists, and whether a parent, who has both legal custody and visitation rights under court order at the time of the abduction and harboring of minor children, has to plead and prove that he or she has suffered an economic loss as a result of the abduction and harboring. As we have stated, “[t]he viability of a legal cause of action is clearly a question of law which, as with all questions of law, this Court shall review de novo.” Wholey v. Sears Roebuck, 370 Md. 38, 48, 803 A.2d 482, 487 (2002). 

This Court apparently first explicitly recognized the torts of abduction of a child from a parent and harboring in Baumgartner v. Eigenbrot, 100 Md. 508, 60 A. 601 (1905). In Baumgartner, an aunt, who had legal guardianship over a teenage girl, sued a husband and wife with whom the girl had chosen to live, alleging that they had abducted the child and harbored her after she had been so abducted. The complaint specifically alleged that defendants abducted and knowingly deprived the aunt of the young woman, that the aunt “became greatly attached to her,” and that the aunt “derived great comfort from [the child's] society as she grew to be larger,” thereby incurring non-economic losses. Id. at 509, 60 A. at 601. The trial judge had directed a verdict because of insufficiency of the evidence, and we affirmed, opining that the evidence was not sufficient to meet the elements of abduction and harboring, which we declared were tortious acts: 

“Abduction, in its broadest legal sense, signifies the act of taking and carrying away by force, which may be by fraud, persuasion, or open violence, a child, ward, wife, etc. In its more restricted sense it is confined to the taking of females for the purpose of marriage, concubinage, or prostitution.”

“Abduction is the unlawful taking or detention by force, fraud, or persuasion of a person, as a wife, a child or a ward, from the possession, custody, or control of the person legally entitled thereto.”

Gist of the Action-The gist of the action for the abduction of a child would seem to be not the loss of service, but the loss to the parent of the comfort and society of the child, though the authorities are not in harmony upon the question.

“In the law of torts, to harbor is to receive, clandestinely or without [legal] authority, a person for the purpose of so concealing him, that another having the right to the [legal] custody of such persons shall be deprived thereof; ... or, in a less technical sense, it is a reception of persons improperly.”
Id. (alteration in original), quoting 15 American and English Encyclopedia of Law 285 (2d ed.1900). After iterating the rule for abduction, we determined that the evidence was insufficient to meet the elements of abduction and harboring:

Now, in all this there is not an element of abduction as it has been defined in the authorities cited in an earlier part of this opinion. Confessedly there was no force used. There was no fraud. There was no open violence and there is no evidence to indicate that there was persuasion of any kind. It would be going a long distance beyond what any case has held to say that the facts we have heretofore given in detail fasten upon the defendants or either of them the charge of abduction. And as to the second count of the declaration there is not any evidence whatever to show that Matilda was received clandestinely for the purpose of concealing her from the plaintiff nor is there anything to indicate that her reception by the defendants was in any sense improper.

We conclude, then, from this review of the evidence in the record that the court below was entirely right in declining to permit this case to go to the jury. As we find no error in any of its rulings the judgment which was rendered in favor of the defendants will be affirmed with costs.

By doing so, we held that a cause of action was viable against one who abducted a child from a custodian and harbored her. Clearly, the definitions of the torts and our acknowledgment of their existence were “pivotal” and necessary premises upon which our ultimate conclusion was based, and thus, were holdings in the case. See Black's Law Dictionary 749 (8th ed. 2004) (A holding is a “court's determination of a matter of law pivotal to its decision” or a “ruling on evidence or other question presented at trial.”). See also Howell v. Howell, 78 S.E. 222, 224 (N.C.1913) ( Baumgartner “held that if the child was kept in defendant's custody in a clandestine manner an action would lie”).

 Our acknowledgment of the torts of abduction and of harboring in Baumgartner, furthermore, was consistent with substantial authority from many of our sister states, who also were original American colonies, facing the same question. In what appears to be the earliest known and most frequently cited American case on abduction, the South Carolina Court of Law in Kirkpatrick v. Lockhart, 4 S.C.L. (2 Brev.) 276 (1809), although primarily concerned with whether it was appropriate to plead abduction in trespass vi et armis or in trespass on the case, relied primarily on the English case, decided in 1600, Barham v. Dennis, 78 Eng. Rep. 1001, and held that a father could sustain an abduction action not only for his son and heir, but for the abduction of any one of his children:

It has been decided, that a father may maintain an action of trespass vi et armis, for entering his house, assaulting his daughter, and getting her with child, per quod, 3 Wils. 18. So, an action on the case lies for debauching his daughter, per quod servitium amisit, though she be above the age of twenty-one years, where acts of service are proved. 2 D. and E. 166 and seq. It was always held to lie where the daughter is under twenty-one, though no acts of service are proved, 2 D. and E. 4, 5; and other evidence, besides what applies to loss of service, is admissible. 3 Esp. R. 119. 8 D. and E. 534. I mention these cases, to exhibit the true foundation of these kinds of actions....

 The true ground of action cannot be the loss of service, for a child may be of an age so tender, or of a constitution so delicate, as to be incapable of rendering any service. The true ground of action is the outrage, and deprivation; the injury the father sustains in the loss of his child....

Years later, in Howell, 78 S.E. at 222, the Supreme Court of North Carolina, when presented with facts remarkably similar to the instant case, also recognized the tort of abduction. In Howell, a father and mother entered into a contract prior to divorce, under which their daughter would remain in the mother's custody until the age of six, at which time the father would become the custodian. Shortly before the child attained the age of six, the mother and her partner abducted the child, and the father sued for damages. In reversing the trial court's dismissal for failure to state a claim, the Supreme Court of North Carolina discussed at considerable length the history of the tort of abduction in English common law, including Barham, and held that the torts of abduction and harboring were recognized and that a father could bring the cause of action for any of his children:

 At the common law, abduction of a child was not an offense. State v. Rice, 76 N.C. 194. But Blackstone, 3 Com. 140, holds that a civil action lay therefor, and that a father could recover damages, though he says it was a doubtful question, on which the authorities were divided, whether a father could recover for the abduction of any other child than the oldest son and heir. In Barham v. Dennis, Cro. Eliz. 770, it was held that he could not. But later cases held that an action would lie for taking away any of the children because the parent “had an interest in them all.” It is interesting to quote the reasoning of the courts at common law as given in Barham v. Dennis, supra. Anderson, Walmsley, and Kingsmil, JJ., said: “The father should not have an action for the taking of any of his children, which is not his heir; and that is by reason the marriage of his heir belongs to the father, but not of any other his sons or daughters; and by reason of this loss only, the action is given unto him; the writ in the Register is for the son and heir, or daughter and heir only; which proves that the law has always been taken, that the action lies not for any other son or daughter. And although it hath been said that a writ of trespass lies for divers things whereof none of them are in the Register; and it hath been adjudged that it lies for a parrot, a popinjay, a thrush, and as in 14 Henry VIII for a dog; the reason thereof is, because the law imputes that the owner hath a property in them.... But for the taking of a son or daughter not heir, it is not upon the same reason, and therefore not alike. Here the father hath not any property or interest in the daughter which the law accounts may be taken from him.” Glanville, J., dissenting, said: “The father hath an interest in every of his children to educate them, and to provide for them, and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it.” The majority of the court are sustained by the form of the writ as preserved in Fitz-Herbert's Natura Brevium 90 H., which was of date 12 Hen. IV, 16. But Judge Glanville based his dissent upon reason and justice and has been sustained by subsequent cases.

An action of trespass for the abduction of a child was originally maintainable by a father where the child abducted was the son and heir and not otherwise. Barham v. Dennis, 2 Cro. Eliz. 770. This was “by reason the marriage of his heir belongs to the father, but not of any other his sons or daughters;” and, although it had been adjudged that the writ of trespass lay “for a parrot, a popinjay, a thrush, and, as 14 Hen. 8 is, for a dog; the reason thereof is, because the law imputes that the owner hath a property in them,” whereas “the father hath not any property or interest in the daughter, which the law accounts may be taken from him.” Later it was held that an action of trespass was maintainable by a father per quod servitium amisit where a child old enough to do him service, other than the heir, was abducted. For the abduction of any other child the action did not lie. Gray v. Jefferies, 1 Cro. Eliz. 55; Hall v. Hollander, 4 Barn. & C. 660. In the latter case it was said: “It is clear that in cases of taking away a son or daughter, except for taking a son and heir, no action lies, unless a loss of service is sustained, Gray v. Jefferies, supra; Barham v. Dennis, supra. The mere relationship of the parties is not sufficient to constitute a loss of service.” In the case of an injury inflicted upon a child so immature that it was incapable of rendering service, the parent might have no remedy against the person inflicting the injury. Hall v. Hollander, supra.

The principle that the abduction of a child, not the heir, or not capable of rendering service, was a wrong for which the law furnished no civil remedy, was not adopted without protest, nor has it received unqualified approval. Thus in Barham v. Dennis, supra, Glanville uttered a strong dissent, saying: “For the father hath an interest in every of his children to educate them, and to provide for them; and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it.” Blackstone was of the opinion that for the abduction of a child, other than the heir, a father might maintain an action, stating that such a wrong was “remediable by writ of ravishment or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; in the same manner as the husband may have it on account of the abduction of his wife.” Bl. Comm. 140.

Based on this, the New York Court of Appeals concluded that the cause of action for abduction and harboring existed irrespective of loss of services:

 In the absence of any New York authority upon the subject [of abduction and harboring] ... we are disposed to hold broadly, as have courts of North and South Carolina, that in actions for the abduction of immature children from the custody of their lawful custodians, parents, or foster parents, no loss of service need be alleged or proven; that for the direct injury done, a direct recovery may be had without resort to the fiction that a loss of service has been occasioned.

The common law has traditionally recognized a parent's interest in freedom from tortious conduct harming his relationship with his child,” and the parent “may be compensated therefor when there is interference with the normal parent-child relationship.” The tortious conduct referred to [in previous Massachusetts cases] includes the abduction, enticement, and harboring and secreting of minor children from their parents, or in other words, the intentional interference with parental interests or rights. The elements of these causes of action are well established. Abduction is the physical taking of a minor child from the parent having legal custody. An action for enticement will lie where one, through an “active and wrongful effort” and knowing that the parent does not consent, induces a child to leave the parent's home. One “harbors” a minor child by inducing or encouraging a child, who is away from the parent without the parent's consent, to remain away from the parent.

 We therefore acknowledge the tort of intentional interference with the parent child relationship as a contemporary expression encompassing actions for abduction, enticement, harboring, and secreting of a minor child from the parent having legal custody.
 

In total, the torts of abduction and harboring have been recognized in at least eight of the other original American colonies. See, e.g., Selman v. Barnett, 61 S.E. 501, 502 (Ga.Ct.App.1908) (holding that one standing in loco parentis can seek general and punitive damages for the abduction and harboring of her child); Plante v. Engel, 469 A.2d 1299, 1301-02 (N.H.1983) (referencing the Restatement (Second) of Torts, Section 700 through common law torts of abduction and harboring); Magee v. Holland, 27 N.J.L. 86 (N.J.Sup.Ct.1858) (holding that a father could recover for the emotional harm caused by the abduction of his child); Moritz v. Garnhart, 7 Watts 302 (Pa.1838) (holding that one standing in loco parentis may maintain an action for the abduction of his daughter's illegitimate offspring). What we glean from these cases, and in particular those cases discussing the English common law, is that the torts of abduction and harboring existed in England prior to 1776, and that, therefore, we adopted them as part of our common law under Article V of the Maryland Declaration of Rights, which states in pertinent part that “the Inhabitants of Maryland are entitled to the Common Law of England ... according to the course of that Law, and to the benefit of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six.”

 Nevertheless, this Court was not called upon to address whether abduction and harboring could be the basis of a cause of action for interference with parent-child relations until Hixon v. Buchberger, 306 Md. 72, 507 A.2d 607 (1986), when asked to confront the question of whether, under the common law of Maryland, a cause of action exists, or ought to be recognized, for money damages resulting from the intentional tortious interference by a non-custodial third-party with the visitation rights of a parent. Hixon was the noncustodial parent of a child born out of wedlock who complained of interference with his relationship with the child by the mother's fiancé, Buchberger, who allegedly made belligerent statements to him in the child's presence, made it physically difficult “at times” for Hixon to take the child with him, and intended “to supplant Hixon in the child's mind as the child's father”; id. at 74, 75, 507 A.2d 608; Hixon never alleged that he was physically prevented from taking the child. Based on these allegations, the trial judge dismissed the complaint for failure to state a claim upon which relief can be granted.