THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, December 20, 1995 TAG: 9512200393
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY ELIZABETH SIMPSON, STAFF WRITER
LENGTH: Long : 175 lines
Kathy Smigielski wants as many people as possible to know that she might be going to prison soon.
That's why she's been on the TV tabloid show ``Inside Edition,'' and why she's consented to interviews with all the local news media. Even if people don't believe her story - that she abducted her own child because she feared the 6-year-old was being abused - she said going public in a big way will serve a purpose: If she has to go to jail, the rest of the world will keep an eye on her daughter.
Michael Weisberg, the lawyer who is representing Kathy's ex-husband, John Smigielski, maintains she's going public for another reason.
``The custody issue has already been tried in two different courts, by two different judges, in two different years,'' said Weisberg, to whom John has referred the media for questions on the case. ``She couldn't get custody of her child with all those hearings, so now she's trying to get it by plying the emotions of the public.''
Kathy is scheduled to go on trial for parental abduction today in Virginia Beach. At issue is whether she broke the law by hiding her daughter from the girl's custodial parent for more than a year. Or whether she protected her daughter from being abused by taking her underground.
The themes of this case mirror those seen across the country when families break down: Bitter custody battles. Parental abductions. Allegations of sexual abuse by one parent against the other. Judges who struggle to sort it all out. And parents who come out at the end feeling angry or afraid.
``If I go to prison, who will look after her?'' asked Kathy, who's living with a grown daughter in Virginia Beach while the case is settled. ``Will someone check and see if she's OK? Or will she be forgotten? No matter what happens, I want everyone to know my little girl is out there.''
Front and center of the case is a 6-year-old girl with blond hair and blue eyes. She is a girl who loves to color and sing and dance.
Her name is not being used here. Both her parents believe she has been sexually molested, though they differ on who they think committed the abuse. It is The Virginian-Pilot's policy not to name victims of such abuse.
The little girl has been in the middle of a tug-of-war since her parents separated four years ago.
Kathy claims she left her husband because he physically abused her. She said she tried to leave her husband several times, but kept returning, as battered wives often do. ``I didn't want to go through another divorce,'' Kathy said. She had been through one failed marriage already, and lost a custody battle for three children of that union.
Weisberg said his client was not abusive to his wife, that he sometimes raised his voice to her, and sometimes got angry with her, but that he never struck her. He said John was the parent who provided structure to the family, that Kathy rarely disciplined her children.
In June 1991, Kathy left her husband for the last time and moved in with her sister in Maryland. John followed her there, and the two had a dispute. Kathy said her husband tried to grab their daughter and flee, but she took the girl back and called the police.
John was arrested for disturbing the peace, but the charge was later dismissed, and Kathy's attempt to get a protective order was denied. A Maryland judge gave Kathy custody of her daughter, pending a Social Services study.
Kathy said she felt threatened by her husband whenever he picked up their daughter for visitation. She said he once told her he would kill her if she continued on with the custody and divorce case. ``We continued to feel victimized,'' Kathy said.
In October of 1991 she took her daughter and fled to Arizona, violating a visitation order. A lawyer friend advised her to call her husband, or she'd be guilty of keeping the girl from her father, so she did. In the meantime, John filed for custody of the child.
In September 1992, a Virginia judge gave the Smigielskis joint custody of their daughter, with the girl alternating every two months between her mother in Arizona and her father in Virginia. Neither parent was happy with the arrangement, and John filed for full custody of the child.
Kathy said she wanted to pursue the case in Arizona instead of Virginia. So she didn't appear at an October 1992 custody hearing, she said, because she thought jurisdiction of the case would be moved to Arizona. The judge gave primary custody of the girl to the father at that hearing, saying the father provided a more stable environment for the girl.
``She was a pillar-to-post kind of mother,'' John's attorney, Weisberg said. ``She was always moving.''
Kathy had the girl for a week at Christmas, and a week during the summer. Her older children continued to visit the girl in Virginia. Soon, Kathy's older children called her in Arizona to say they felt something was wrong, that their half-sister never wanted to return to her father after a visit. ``They kept telling me something was up,'' Kathy said.
Kathy returned to Virginia in late 1992 so she could see her daughter more often. Some time during the next year the girl began complaining about her bottom hurting, and kept pulling at her pants. She said she ``hurt inside,'' said Kathy.
Asked whether she had hurt herself in the vaginal area, the girl said she hadn't, but her father had, Kathy said.
Dr. John M. deTriquet, a child abuse expert at Children's Hospital of The King's Daughters, examined the girl in October 1993 and determined the girl's hymen, a thin membrane that usually closes part of the opening of the vagina, looked abnormal. Its appearance was ``consistent with digital manipulation,'' deTriquet wrote in a medical statement.
A Child Protective Services investigation resulted in a ``reason to suspect'' finding, which meant there was enough evidence to believe abuse had occurred, but not enough to file charges against anyone. A letter was sent to Kathy saying John was the alleged abuser.
The ``reason to suspect'' category has since been judged unconstitutional, with all state records purged of those findings.
Weisberg said his client agrees with his ex-wife that the girl had been abused. ``It could have been a neighbor, a family member; it could have been anybody. But not him. He refuses to point the finger to anyone because that's not the kind of guy he is.''
The ``reason to suspect'' finding was enough to land the case in court again. During an emergency hearing, a judge gave temporary custody to the mother, and allowed the father supervised visitation until another hearing could be conducted.
In November 1993, a judge again gave John primary custody, saying that there was no evidence that John had abused the girl, and that he provided a more stable environment for the girl.
Kathy's lawyer filed a written objection to the ruling. The judge's decision, the lawyer wrote, was ``contrary to the evidence'' that the child on three separate occasions told her mother, a counselor and two Child Protective Services employees her father had abused her.
Kathy was to return the girl to John Feb. 13, 1994.
``I was supposed to take her to McDonald's and hand her over to him. I could not do that. As a mother, as a human being, I could not hand my daughter over to a suspected molester.''
Again Kathy fled to Arizona, and from there she moved to Palm Springs, Calif. She won't say what she did while she was there, or who helped her, because she said she's afraid others could get in trouble for aiding and abetting a fugitive.
She lived underground for 18 months until one day in August when police showed up at her door with a warrant for her arrest. They'd received an anonymous tip she had abducted her daughter.
Kathy felt both fear and relief.
``I didn't want to stay underground forever. So much of me wanted the nightmare to be over. I just felt the judge had made a horrible mistake. How do you fix something when it's that broken?''
One officer put handcuffs on Kathy; another officer helped the little girl gather some of her favorite toys. Kathy asked if she could say good-bye to her daughter. ``I gave her a kiss and said, `Remember no matter what, that I love you. I don't know how long it will be before I see you again, but remember I love you.' ''
She last saw her daughter sitting in a police car heading to Social Services. ``She had this look on her face like, `What's going on?' ''
Kathy spent six weeks in jail in California before being extradited to Virginia Beach in September. She is now out on bail. She faces a maximum sentence of five years in jail if convicted.
``Jail is the worst hell I have ever been through. The thought of going back scares the hell out of me. I don't want to go, but I know I did the right thing.''
Meanwhile, the Smigielskis' daughter is living with John. ``She's happy, healthy, doing well,'' Weisberg said. ``Every report I get is that everything is going very well.'' ILLUSTRATION: Color photo by MOTOYA NAKAMURA, The Virginian-Pilot
Kathy Smigielski, accused of hiding her daughter from her
ex-husband, goes on trial in Virginia Beach today.
KEYWORDS: CHILD CUSTODY PARENTAL ABDUCTION by CNB