Illinois Supreme Court Reaffirms Non-Recognition of Civil Tort for Parental Custody Interference

Introduction

In Hulsh v. Hulsh (2025 IL 130931), the Supreme Court of Illinois addressed whether Illinois courts should recognize a civil cause of action for tortious interference with parental custodial rights. The dispute arose after Viera Hulsh successfully regained custody of her two children in federal court under the Hague Convention and ICARA. She then sued her former in-laws in Cook County state court for aiding and abetting the wrongful removal of the children, seeking reimbursement of her legal fees and other expenses. Both the trial and appellate courts dismissed her state-law tort claims, and she appealed to the state’s highest court. The key issue: Should Illinois judicially create a civil tort for interference with the parent-child relationship—at least to allow purely economic damages—despite decades of precedent declining to do so?

Summary of the Judgment

Justice O’Brien, writing for a unanimous court, reaffirmed that Illinois does not recognize a cause of action for tortious interference with the parent-child relationship—regardless of whether the damages sought are emotional or purely economic. The court agreed with the lower courts that there is no existing statutory or common-law basis for such a tort, and it declined to break with prior rulings. Instead, it deferred to the General Assembly to determine whether a civil remedy should be created. The judgment of the appellate court was affirmed, and Viera’s complaint was dismissed in its entirety.

Analysis

Precedents Cited

Whitehorse v. Critchfield (144 Ill. App. 3d 192, 1986): The Fourth District refused to recognize a cause of action for tortious interference with custodial rights and observed that adopting such a tort was a legislative, not judicial, matter.
Dralle v. Ruder (124 Ill. 2d 61, 1988): Illinois Supreme Court held there is no cause of action for loss of a child’s companionship in nonfatal personal-injury cases, and it expressly left open the question of direct interference with parent-child relations.
Doe v. McKay (183 Ill. 2d 272, 1998): The court extended Dralle’s reasoning to direct interference claims, rejecting psychiatric-therapy-related interference torts because no statutory foundation existed.
Vitro v. Mihelcic (209 Ill. 2d 76, 2004): Reaffirmed that nonfatal injury claims for loss of filial consortium lack statutory support and declined to judicially create one.
Restatement (Second) of Torts § 700: Defines a tort for “Causing Minor Child to Leave or Not to Return Home,” but Illinois has never adopted this provision.
Dymek v. Nyquist (128 Ill. App. 3d 859, 1984) and Kunz v. Deitch (660 F. Supp. 679, N.D. Ill. 1987): State and federal courts sitting in diversity briefly recognized interference torts, but those decisions conflict with later Illinois Supreme Court cases.

Legal Reasoning

The court began with the familiar principle that courts should not create new tort causes of action in areas where the legislature has not acted. Under Illinois practice, a valid tort claim requires a duty, breach of duty, and damages arising directly from that breach. Viera sought only economic losses—attorney fees and expenses—rather than damages for emotional harm or lost companionship. But the court held that damages must flow from a recognized tort, and no such tort exists in Illinois for interference with custody.

On de novo review of the trial court’s dismissal under section 2-615 of the Code of Civil Procedure, the court reaffirmed prior holdings (Dralle, Doe, Vitro) that consistently declined to recognize any civil action for interference with a parent-child relationship. The Restatement’s § 700 provision remains unadopted, and Viera’s attempt to confine recovery to purely economic losses did not alter the analysis.

The court further observed that Congress has provided a remedy under the Hague Convention and ICARA for wrongful removals, including fee awards against respondents in federal actions. Viera had successfully invoked that regime against her former husband and obtained an award. Meanwhile, Illinois statutes address parental interference by imposing criminal penalties, not civil liability. The judiciary is not the proper forum to rewrite that balance.

Impact

The decision cements Illinois’s uniform refusal to create a civil tort for interference with parental custodial rights and directs litigants to existing avenues—primarily ICARA and criminal provisions—for redress. Future plaintiffs in state court cannot recover attorney fees or expenses incurred in obtaining custody unless the legislature enacts a new civil cause of action. Family law practitioners must continue to rely on federal Hague Convention actions or criminal statutes to address international or interstate child abductions.

Complex Concepts Simplified

ICARA (International Child Abduction Remedies Act): Federal law implementing the Hague Convention; provides a procedure for the return of children wrongfully removed or retained and authorizes courts to award “necessary expenses” (including legal fees) against the respondent.
Section 2-615 Dismissal: A motion in Illinois state court challenging whether the complaint states any legally recognizable claim; if no “set of facts” can support a cause of action, the suit is dismissed without reaching the merits.
Restatement (Second) of Torts § 700: An influential but nonbinding model provision that would impose liability on anyone who, without parental consent, abducts or induces a child to leave lawful custody. Illinois courts have never adopted it.
De Novo Review: The appellate standard for motions to dismiss under section 2-615, meaning the Supreme Court evaluates the legal sufficiency of the complaint from scratch, without deference to lower courts’ reasoning.

Conclusion

Hulsh v. Hulsh reaffirms that Illinois law does not recognize a civil tort for tortious interference with parental custodial rights—regardless of whether the claimed damages are emotional or purely economic. The Supreme Court of Illinois has consistently deferred to the legislature to decide whether to create such a cause of action. In doing so, it preserves the existing balance: federal ICARA proceedings for return and fee awards, criminal sanctions for abduction, and no parallel civil remedy in state court. Any expansion of parental remedies for wrongful interference must come from the General Assembly rather than the judiciary.