2024 IL App (1st) 221521
Ill. App. Ct.2024Background
- Viera Hulsh (mother), a Slovak citizen, and Jeremy Hulsh (father), a U.S./Israeli citizen, divorced in 2019, with Viera granted primary custody of their children in Slovakia.
- In October 2019, Jeremy unlawfully removed the children from Slovakia to Chicago without Viera's consent, allegedly assisted by his mother (Maya) and brother (Oren), who helped finance and conceal the abduction.
- Viera successfully petitioned in federal court under the Hague Convention for the return of her children, securing their return and a $265,096.87 award in attorney fees and costs against Jeremy. Jeremy declared bankruptcy and did not pay.
- Unable to collect from Jeremy, Viera sued Maya and Oren in Illinois state court for tortious interference with custodial rights, aiding and abetting, and intentional infliction of emotional distress; the trial court dismissed the first two counts.
- On appeal, the central question was whether Illinois recognizes a cause of action for tortious interference with custodial rights, especially in the context of international child abduction by third parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recognition of tortious interference with custodial rights as a cause of action in Illinois | Illinois should recognize this claim due to the egregious facts and some other states do | Illinois law does not recognize such a tort, and courts have repeatedly refused to do so | Not recognized; court declines to create new cause of action |
| Availability of remedy in federal court under Hague/ICARA | Cannot recover from third party abettors in federal court | Remedy was available under the Hague Convention and ICARA against all involved parties | Federal court remedy sufficient; no new tort needed |
| Public policy supporting new remedy | Public policy dictates deterrence of abduction by holding helpers civilly liable | Sufficient deterrence exists via criminal law and federal remedies | Public policy does not warrant new civil tort |
| Dismissal of civil conspiracy claim | Sufficient facts pled for conspiracy claim | Dependent on the existence of underlying tort | Conspiracy claim fails, as underlying tort is not recognized |
Key Cases Cited
- Whitehorse v. Critchfield, 144 Ill. App. 3d 192 (Ill. App. Ct. 1986) (Illinois appellate court declined to recognize tortious interference with custodial rights)
- Dralle v. Ruder, 124 Ill. 2d 61 (Ill. 1988) (Illinois Supreme Court declined to recognize damages for interference with parent-child relationship, reserving new torts for legislature)
- Vitro v. Mihelcic, 209 Ill. 2d 76 (Ill. 2004) (Confirmed legislature’s authority to create new parental tort claims)
- Doe v. McKay, 183 Ill. 2d 272 (Ill. 1998) (Rejected recoveries for direct/indirect interference with parent-child relationship)
- Lewis v. Lead Industries Ass’n, 2020 IL 124107 (Ill. 2020) (Defined civil conspiracy claim requirements in Illinois)