By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.

1. Trial court reversed and remandedfor failure to conduct a best interest analysis in a post-judgment parenting case.In a post-judgment matter, which was rife with conflict and wherein the trial court stated, “both…parents engage in such horrible behavior towards each other,” the parties filed various cross-petitions for modification of decision-making responsibilities of their two minor children, each asking in various forms to be granted sole decision-making.  The parties had two sons, and the litigation centered around their fundamental disagreement in the approach to handling their older son who had behavioral issues.  The record evidenced that mother was more aggressive in dealing with the problems clinically while father preferred minimal medical intervention.  After an eight-day trial which involved the testimony of two custody evaluators, the GAL, and the child’s psychologist, the trial court declined to modify the joint decision-making parameters of the parenting agreement.  In its order, it also removed what it deemed an obligation of the parties to comply with the professional recommendations of third parties. Mother appealed.  The Appellate Court noted that the scope of the order which the trial court modified actually did not contain any mandate for the parties to comply with certain third party professional recommendations, butonly directed the parties to work with the child psychologist on a family therapy and behavior plan.  While the record supported the trial court’s finding that a substantial change of circumstances was present, the trial court erred in not engaging in the best interest analysis after it made its finding of a substantial change in circumstances.  The Court directed the trial court on remand to consider how removing the requirement for the parties to cooperate on a family therapy plan was in the children’s best interests.  It is the author’s opinion that the Appellate Court was suspect, based on the evidence presented at trial, that such analysis would yield a result that the removal of the requirement was in the best interests of the children.In re Marriage of Gorr, 2024 IL App (3d) 230412.
   In re Marriage of Gorr
2. Trial court reversed for failing to apply appropriate analysis ona post-judgment petition for modification of parental decision-making.  In a highly litigious and contentious post-judgment parenting case, the trial court denied cross-petitions filed by both parents, each seeking sole decision-making responsibilities of their two minor children.  Mother appealed and the Appellate Court reversed and remanded.  The trial court applied the incorrect standard in denying both parties’ petitions.  The Court noted that while the trial court may have “imputed” its substantial change of circumstances finding from the first issue it addressed (see Flash Point #1), but that it was not clear.  The Court also noted that father had requested sole decision-making with respect to medical and educational decisions and mother had requested sole decision-making overall all areas of decision-making.  However a nuanced distinction, it should not have gone unexplored by the trial court.  Therefore, the trial court abused its discretion and the Court returned to the court to consider whether there was a substantial change of circumstances since the entry of the parenting agreement and if so, whether any modification was in the children’s best interests.In re Marriage of Gorr, 2024 IL App (3d) 230412.
   In re Marriage of Gorr
3. First District declines to recognize new tort for interference with custodial rights.Mother filed a three-count lawsuit in the Circuit Court of Cook County against father’s mother and brother for tortious interference with custodial rights in connection with the aiding and abetting of removing the minor children from Slovakia to Illinois and intentional infliction of emotional distress.  The lawsuit came as a result of litigation in the Norther District of Illinois pursuant to the Hague Convention mother brought against father after he removed the children from Slovakia, where they were living with her, and hid them in the Chicago.  Mother successfully prosecuted her Hague Convention case, and the children were returned to her.  She then filed for fees and expenses against father, who subsequently filed for bankruptcy.  The District Court eventually granted mother $265,000 in fees which was approximately 50% of her request.  Unable to collect on the money judgment against, father, mother filed in the Circuit Court of Cook County the case at issue.  The Illinois Appellate Court held that only the Illinois Supreme Court or the legislature are permitted to create new causes of action, and because the Supreme Court has repeatedly declined to recognize a claim for tortious interference with custodial rights, it would continue to honor that precedent.  The Court also opined that mother had the ability to seek her relief in the District Court in her underlying Hage case.  Justic Oden Johnson filed a dissent arguing that public policy dictates that the Court should have allowed the cause of action to proceed as a deterrent to future behavior where the facts were such that both father’s mother and brother assisted father in removing the children from their home and bringing them to Chicago and provided aid and support to father to accomplish same. Hulsh v. Hulsh, 2024 IL App (1st) 221521.
   Hulsh v. Hulsh