Case Update (28 June 2024): Hulsh v. Hulsh; Illinois Appellate Court refuses to create tort for interference with custodial rights in suit against third parties for aiding a parental child abduction
The appellant is the Mother to children who were removed from Slovakia by their Father in October 2019, and unilaterally resettled in Chicago, Illinois. The Mother sought the children’s return to Slovakia using the Hague Abduction Convention, and prevailed on July 21, 2020. On March 15, 2021, the U.S. District Court partially granted the Mother’s request for legal fees, and ordered the Father to pay $265,096.87, pursuant to the fee-shifting provisions in the International Child Abduction Remedies Act. A bankruptcy court found that the fees were not dischargeable when the Father subsequently declared bankruptcy because they constituted “domestic support obligations” under the Bankruptcy Code (11 USC 101, et. seq.). When the Mother could not collect on the money judgment against the Father, she filed a separate tort lawsuit against his mother and brother in state court, alleging: (1) tortious interference with custodial rights, (2) aiding and abetting tortious interference with custodial rights, and (3) intentional infliction of emotional distress. Among other allegations, she argued that the children’s grandmother paid for a private charter flight to fly the children from Slovakia to England to Canada. In Canada, allegedly, the children’s uncle paid for a car to shuttle the children to the United States. When in the United States, allegedly, the children stayed in a home “rented or owned” by the grandmother, who helped care for them and finance their “concealment and care”. The Mother alleged “significant financial damages” from all the various lawsuits and the temporary suspension of her employment so she could pursue the litigation, seeking her children’s return to Slovakia. The trial court dismissed the first two causes of action, because tortious interference does not exist under Illinois law, but declined to dismiss the intentional infliction of emotional distress claim (although, the Mother ultimately voluntarily dismissed this claim). The Mother appealed the dismissal of the tortious interference claims.
On appeal, the Mother argued that the relief she was seeking was limited to expenses she incurred in re-obtaining custody of her children, and not for damages arising from the damage caused to her relationship with the children. But, the court responded that “Illinois courts have declined to recognize tortious interference with custodial rights as a cause of action regardless of the damages claimed”. Consistently, in prior cases, the court repeatedly declined to recognize a cause of action for this tort, “finding that it was ‘the legislature which should decide whether this new cause of action should be created.’”
The Mother argued that the Grandmother and Uncle “will be able to completely escape liability” if this case cannot proceed. The court responded stating that the “[Mother] could have brought suit against [Grandmother] and [Uncle] in connection with her Hague Convention claim in federal district court”.
The Appellate Court affirmed the trial court and the case is dismissed.
The dissenting judge argued for the case to proceed, concluding that public policy requires that the court should recognize tortious interference for child abduction, which is codified as a felony with criminal penalties in Illinois statute. Further, the Restatement of Torts recognizes such a tort. The Mother’s fee award in the Hague case against the Father does not preclude a wholly independent award of fees from a tortfeasor. The dissent also was concerned that the Mother might not have been able to include the Grandmother and Uncle as Defendants in the Hague matter, due to the lack of caselaw, particularly as it existed at the time of the Mother’s suit in federal court.
On May 22, 2025, the Supreme Court of Illinois affirmed the Appellate Court.
