In Illinois, go see dad or go to juvenile jail

Ann Scott Tyson

Thursday, April 18, 1996 | 11:59 a.m.

CHICAGO -- When Heidi Nussbaum refused to visit her father last summer, an Illinois judge shocked many legal experts and child advocates by sending the 12-year-old to a juvenile detention center in shackles.

Last week, however, an Illinois appellate court ruled unanimously that Will County Associate Judge Ludwig Kuhar had acted within his rights by punishing Heidi and her younger sister, Rachel, for contempt of court. The girls must now return to the court in Joliet, Ill., on May 9 to face another possible order from Judge Kuhar to visit their father - or accept the consequences.

The girls' case illustrates the still unusual but increasing willingness of judges in Joliet and elsewhere to enforce their orders by holding children in contempt of court. "There is a growing tendency on the part of judges to use contempt powers in child-related proceedings," says Diane Geraghty, a law professor and director of child-law programs at Loyola University, Chicago.

In another case currently before the Will County court in Joliet, for example, a judge will decide soon whether to jail two suburban Chicago teens, Galatea Kapsimalis and her brother, Peter, for refusing to visit their estranged father. The two were found in contempt of court last June.

The cases also show how children caught in the crossfire between divorced parents may suffer even further under the impersonal control of courts, legal experts say.

"We know that a litigative approach is not preferable for dealing with family conflict," says Howard Davidson, executive director of the American Bar Association's Center on Children and the Law in Washington.

But experts acknowledge that courts have a strong vested interest in using the threat of contempt proceedings to enforce their orders. They note that Kuhar had briefly tried to sway the girls through other measures such as counseling.

Still, as arising awareness of children's rights leads more minors to contest court decisions, experts stress that judges should not resort to contempt proceedings as an expedient way to try to quash youthful defiance. "Judges can just say: 'You disobeyed an order, so off you go,' " Professor Geraghty says.

Such an approach is unlikely to resolve the complex and often highly charged emotional conflicts underlying many family disputes, child legal experts say.

In the Nussbaum case, Kuhar's frustration with Heidi and Rachel led him to hold them in contempt of court when other, milder solutions would have been preferable, the experts say.

"The judge was locking up a child in jail in the same way a parent would say, 'Go to your room until you change your mind,' - that's an extreme that is not helpful," says Seth Goldstein, an attorney and executive director of the Child Abuse Forensic Institute, a child advocacy group in Concord, Calif.

"If a child has such strong beliefs, we need to pay attention and not treat them like criminals," agrees Mr. Davidson.

Heidi and Rachel claim that their father, Sheldon Nussbaum of Charlotte, N.C., emotionally abused them during past visits. They now live in Lisle, Ill., with their mother, Kathy Marshall, who divorced in 1992 and won custody under a 1993 ruling. Under a court agreement, the girls were to visit Mr. Nussbaum two or three times each year for a total of several weeks.

Last May, Kuhar dismissed as "less than credible" the girls' complaints of abuse. In July, when the girls adamantly refused to cooperate, he placed them in foster care. A week later, he ordered Heidi placed in a juvenile detention facility until she agreed to go visit her father. At the same time, he "grounded" Rachel at home. But after one day, the appeals court put both sentences on hold until it could hear the case.

Critics say such strong-arm tactics overlook alternatives to resolving visitation disputes, such as the use of mediators, family counseling, and supervised visitation centers that have sprung up in recent years. Since the jailing last summer, the family has undergone counseling with a court-appointed psychologist, and the girls have had supervised visits in Illinois with their father.