In re Marriage of Bastian, 2023 IL App (3d) 220163-U

Summary

Case Summary: In re Marriage of Bastian, 2023 IL App (3d) 220163-U - Summary: In an era where digital evidence—emails, calendar apps, and text messages—can make or break custody disputes, In re Marriage of Bastian exposes how courts are cracking down on parents who weaponize scheduling to erode the other's court-ordered time. The 2023 Illinois appellate decision affirms that "death by a thousand scheduling cuts" won't escape judicial scrutiny, offering a tactical blueprint for parents to document interference patterns and leverage remote-work flexibility while warning that digital paper trails now serve as decisive courtroom ammunition.

The opposing counsel is already on the back foot—and In re Marriage of Bastian just handed you the playbook for why.

When the Third District Appellate Court affirmed the trial court's modification of parenting time in August 2023, it sent a clear message to every parent who thinks they can weaponize extracurricular schedules and pandemic-era excuses to suffocate the other parent's court-ordered time: the courts are watching, and they will correct the imbalance.

This unpublished decision deserves your attention—not because it breaks new ground, but because it crystallizes exactly how Illinois courts analyze parenting time modifications when one party's "scheduling" becomes strategic deprivation.

The Facts That Matter

Richard Bastian filed a verified petition to modify parenting time under 750 ILCS 5/610.5(a) and (e)(2). His allegations were straightforward but devastating:


    
COVID-era restrictions had disrupted his ability to exercise meaningful midweek parenting time
    
The mother's scheduling of the children's extracurricular activities during his court-ordered time effectively nullified his parenting schedule
    
Winter break allocations were disproportionately favoring the mother
    
Make-up time was being denied or obstructed


Katie Bastian responded with a Section 2-615 motion to dismiss, arguing the petition failed to state a claim. The trial court denied that motion, held an evidentiary hearing, and ultimately increased the father's parenting time—both midweek and during holidays.

The appellate court affirmed on all counts.

The Legal Architecture: What the Court Actually Said

Pleading Sufficiency: "Barely" Is Still Sufficient

The appellate court characterized the father's petition as "barely" sufficient to survive the motion to dismiss. That word choice is instructive. You don't need a doctoral dissertation on changed circumstances—you need concrete factual allegations connecting schedule disruptions to meaningful deprivation of parenting time.

The father's petition worked because it identified:

    
Specific external changes (pandemic restrictions)
    
Specific parental conduct (activity scheduling during his time)
    
Specific denial of remedies (blocked make-up opportunities)
    
Specific imbalance (winter break allocation)


This is the minimum viable product for a modification petition. Anything less invites dismissal. Anything more builds your evidentiary foundation before you even reach the hearing.

The Evidentiary Battle: Work-From-Home as a Game Changer

Here's where the case gets interesting for the post-pandemic landscape. The trial court credited testimony that the father's work-from-home status made increased midweek time feasible—a changed circumstance that cuts in favor of modification when combined with evidence that the current schedule wasn't functioning.

The court also found that extracurricular activities were being scheduled during the father's parenting time and that the mother was preventing his participation or denying make-up time. This pattern—death by a thousand scheduling cuts—is exactly what courts are now trained to identify and remedy.

The MSA Factor: "Good Faith Flexibility" Has Teeth

The parties' Marital Settlement Agreement contained provisions about extracurricular activities and a duty of "good faith flexibility." The appellate court noted that this contractual language informed the trial court's analysis—when one parent's scheduling effectively deprives the other of meaningful time, the MSA itself becomes evidence of bad faith.

If your MSA contains similar language, it's not aspirational boilerplate. It's a loaded weapon.

The Standards of Review: Why Appeals Are Uphill Battles

The appellate court applied the appropriate deference framework:

    
Motion to dismiss: De novo review of legal sufficiency
    
Modification ruling: Abuse of discretion
    
Factual findings: Manifest weight of the evidence


Translation: unless the trial court's decision is arbitrary, unreasonable, or based on findings that no reasonable person could reach, the modification stands. The mother's appeal was doomed the moment the trial court entered its order with adequate factual support.

Strategic Takeaways for Illinois Family Law Practice

For the Parent Seeking Modification

Document everything. Every extracurricular activity scheduled during your time. Every denied make-up request. Every email where flexibility was requested and refused. Build your case before you file.

Plead with precision. Don't rely on generalized complaints about "interference." Identify specific schedule conflicts, specific denials, specific patterns. The Bastian court accepted a "barely" sufficient petition—don't test those limits.

Leverage remote work. If your employment circumstances have changed to allow greater availability, that's a changed circumstance worth alleging. Courts are increasingly receptive to arguments that pandemic-era work flexibility should translate to parenting flexibility.

For the Parent Defending Against Modification

Audit your scheduling decisions. If you're consistently placing activities during the other parent's time, you're building their case for them. Courts now recognize "schedule stacking" as a form of interference.

Honor the MSA's flexibility provisions. If your agreement requires good faith cooperation on scheduling, document your compliance. Offer make-up time proactively. Create a paper trail of reasonableness.

Don't rely on dismissal. The Bastian court's "barely sufficient" language means the pleading bar is low. Prepare for an evidentiary hearing from day one.

For Both Parties

Mediation clauses matter. If your MSA requires mediation before modification, comply with it. If it doesn't, consider whether voluntary mediation might resolve scheduling disputes without the cost and uncertainty of litigation.

Winter break and holiday allocations are vulnerable. If your current schedule creates obvious imbalances, expect scrutiny. Courts are increasingly willing to recalibrate holiday time to reflect actual fairness rather than paper equality.

The Cyber-Family Law Intersection

Cases like Bastian increasingly turn on digital evidence. Email threads documenting scheduling requests and denials. Calendar apps showing activity placement. Text messages revealing attitudes toward flexibility.

If you're litigating a modification case in 2024 and beyond, your discovery requests should include:

    
All electronic communications regarding scheduling and extracurricular activities
    
Calendar data from shared parenting apps
    
Social media posts showing activities during disputed parenting time
    
Employment records documenting remote work capability


The parent who controls the digital narrative controls the case. Cyber negligence—failing to preserve communications, inconsistent statements across platforms, metadata contradictions—becomes leverage in discovery.

The Bottom Line

In re Marriage of Bastian confirms what experienced practitioners already know: Illinois courts will not tolerate the slow strangulation of parenting time through strategic scheduling. The modification framework under 750 ILCS 5/610.5 provides adequate tools to address these situations, and appellate courts will defer to trial court findings when the evidence supports reallocation.

If you're the parent being squeezed out, Bastian is your roadmap. If you're the parent doing the squeezing, Bastian is your warning.

The trial court saw through the scheduling games. The appellate court affirmed. The precedent—even unpublished—is now part of the landscape.

Your opposition just blinked. The question is whether you're positioned to capitalize.



Facing a parenting time modification dispute in Illinois? Whether you're seeking to enforce your court-ordered time or defending against a modification petition, strategic preparation determines outcomes. Book a consultation now—because the other side is already preparing their case.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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