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Offline dhanika

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Introduction
« on: January 28, 2010, 08:18:14 PM »
My name is Dhanika Athukorala the parent, father and sole custodial parent of a 2 and a half year old girl and citizen of the United States, Kali Soleil Athukorala, who has been abducted by her mother who also happens to be a United States citizen. My daughter is currently being wrongfully retained in the Dominican Republic.
 
I would urge you to visit my website if you are interested in learning more about my story at http://www.bringkalihome.net. I would like to give you all an idea of what has happened so far in my struggle for the return of my daughter and not replicate the information on my website.
 
On July 15th, 2009 I filed a petition with the Office of Children's Issues at the State Department for the return of my daughter under the Hague Convention on the Civil Aspects of International Child Abduction. The Dominican Republic became a signatory to that convention in June 2007, approximately 2 months before the birth of my daughter.
 
On July 31st, 2009, the Dominican Central Authority received my petition. Within a few weeks, the DR's CA responded via email to the State Department stating that they believe that my petition contained several errors that prevented them from acting on my petition. The response was received sometime in August, 2009 by the Department of State. The response was received in English and no Spanish translation was sent as is the usual protocol. The English translation turned out to be an unintelligible mess so the State department sent a request to the DR's CA requesting the original Spanish version of the response. This was received another month and a half later, on October 19th, 2009, now about 90 days after my petition.
 
The following is a translation of their response:
 
I. Ms. Sandra Clarissa Zemialkowski appeared freely and voluntarily before the
National Council for Childhood and Adolescence (CONANI) to inform us that
she is currently involved in a suit for custody, child support [pensión],
visitation, and international child abduction brought by Mr. Dhamika
Athukorala through the Hampshire County Family and Probate Court of the
Commonwealth of Massachusetts, United States of America, as reflected in
the documentation Ms. Sandra Clarissa Zemialkowski has deposited with us.
 
II. Included with the above-mentioned documentation is a court order issued by
the Hampshire County Family and Probate Court of the Commonwealth of
Massachusetts, ordering the international return of minor child Kali Soleil
Athukorala Zemialkowski to the United States of America, based on the 1980
Hague Convention on the Civil Aspects of International Child Abduction, and,
in addition, the order rules on the custody of the child in question.
 
III. CONANI believes that the order for the international return of the child Kali
Soleil Athukorala Zemialkowski, which also rules on the child’s custody,
contains a number of errors, and that these errors make the order impossible to
enforce under the above-referenced Convention.
 
IV. To this end, Article 16 of the Convention states that in reviewing an
application for the international return of a minor, judicial authorities cannot
rule on the merits of custody of the child in question. However, the
Massachusetts family court obviously did so by ruling on both matters at the
same time, and also violated Article 19 of the Convention in this regard.
 
V. Moreover, Article 22 of the Convention was violated in that the court required
Ms. Sandra Clarissa Zemialkowski to post a bond, allegedly as part of the
proceeding for the international return of her daughter.
 
VI. Among other aspects, for purposes of applying the Convention, the nationality
and domicile of the minor child are not taken into account, but rather the
child’s habitual residence, which is defined as the place where the child’s life
is based together with the person who takes care of him/her.
 
VII. In the case at hand, from the time she removed her daughter, the mother
assumed responsibility for the care and custody of Kali Soleil Athukorala
Zemialkowski. According to substantive law of the Commonwealth of
Massachusetts, the father cannot establish custody by simply claiming
fatherhood, as [custody] this must be established by the court, and, therefore,
[the child’s] removal was lawful.
 
If you analyze their response it is a clear if not blatant mis-interpretation of the Hague Convention.
 
Breaking their response down here are the obvious problems:
 
Item IV: Article 16 of the Hague Convention clearly states that the jurisdiction to which my daughter was abducted to cannot rule on custody issues. It does not take too much deduction to realize that the Dominican Republic is the jurisdiction to which my daughter has been abducted to.
 
Item V. Article 22 of the Hague Convention is specific to the Hague petition and NOT a custody hearing. Furthermore article 22 refers to the fact that the Dominican Republic's CA may not impose a bond on me for work they may have to perform on my behalf.
 
VI. My daughter's habitual residence remained MA as defined by the Hague Convention and court order.
 
VII. At the time of the wrongful retention and my petition I had sole custody of Kali awarded to me during a custody trial that lasted just over a year and to which Sandra had participated either in person or by representation from an Attorney.
 
It has now been almost 6 months since I filed my petition and almost 1 year since I have seen Kali. I have yet to receive a court date in the Dominican Republic as is required under the Hague Convention. From my communication with the state department, a formal response has been sent to the Dominican Republic's CA outlining the clear misinterpretations and we have been waiting now for several weeks for a response from the DR's CA. I have been informed that the DR's CA has not been returning the State Department's calls.
 
During this very difficult time I decided that the civil process was not working for me and filed criminal charges against Sandra Zemialkowski for parental kidnapping. I am pursuing both the criminal and civil processes to try and get my daughter returned.
 
If anyone has any comments or suggestions or can offer any advice it would be greatly appreciated.
 
Personally, this has been a very difficult, stressful and painful experience for me. I have not seen my daughter for 11 months and a foreign government is now supporting her abduction.
 
I hope that those of you reading this can help me hold the Dominican government accountable. United States citizens provide valuable income to the Dominican Republic in the form of tourism. I hope that somehow we can send a message to the DR's government that we will not tolerate their support of the abduction of a US citizen.
« Last Edit: January 29, 2010, 09:24:27 PM by gil »

Offline forthelost

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Re: Introduction
« Reply #1 on: January 28, 2010, 08:20:51 PM »

Offline SageDad

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Re: Introduction
« Reply #2 on: February 01, 2010, 12:24:26 PM »
Absolutely unbelievable!!  I'm censoring myself here to avoid profanity... (the burdens of being a moderator require self-censorship).  The Central Authority outright denied the petition.. XXX?  And they do so by sending in what sounds like a google translation of their retarded reasoning?  I didn't even need to read to your analysis of the problems with their logic.  I am familiar enough w/ the Hague Convention and Hague cases to see the huge holes in it already.  I hope the Dominican Republic is, at the very least, listed in the upcoming Non-Compliance report as having a "pattern of non-compliance."  Sounds like the DR should change replace "Dominican" with "Banana."

There is a bill in Congress, HR 3240, written by Congressman Chris Smith to hold countries like this responsible for sanctioning the kidnapping of American children.  Please contact your congressman to ask that he co-sponser this bill.  I would also recommend contacting your senators and keeping in touch with the State Dept to push them to keep pressing the DR.  They normally back away from these cases once they go into the foreign country's courts but your case is being blocked directly by the foreign CA and they have no excuse whatsoever for not remaining directly involved.  The DR central authority is grossly mis-interpreting the convention and the OCI knows it.
“What you seek is seeking you.”
― Rumi

Offline dhanika

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Re: Introduction
« Reply #3 on: February 01, 2010, 02:42:50 PM »
Quote from: carlos;67023
Absolutely unbelievable!! I'm censoring myself here to avoid profanity... (the burdens of being a moderator require self-censorship). The Central Authority outright denied the petition.. XXX? And they do so by sending in what sounds like a google translation of their retarded reasoning? I didn't even need to read to your analysis of the problems with their logic. I am familiar enough w/ the Hague Convention and Hague cases to see the huge holes in it already. I hope the Dominican Republic is, at the very least, listed in the upcoming Non-Compliance report as having a "pattern of non-compliance." Sounds like the DR should change replace "Dominican" with "Banana."
 
There is a bill in Congress, HR 3240, written by Congressman Chris Smith to hold countries like this responsible for sanctioning the kidnapping of American children. Please contact your congressman to ask that he co-sponser this bill. I would also recommend contacting your senators and keeping in touch with the State Dept to push them to keep pressing the DR. They normally back away from these cases once they go into the foreign country's courts but your case is being blocked directly by the foreign CA and they have no excuse whatsoever for not remaining directly involved. The DR central authority is grossly mis-interpreting the convention and the OCI knows it.

Carlos your sentiments are pretty much along the same lines of what I felt when I saw this.  The audaciousness of the mis-interpretation is what I would like everyone to see here.   I hope that other LBPs who may have to deal with an abduction to the Dominican Republic and LBPs who are dealing with other countries see this and realize the importance of holding nations accountable.  
 
We all need to get behind the resolutions before the house that will help hold abductors and nations accountable.  It is one thing to not be a signatory to the convention but another to actually be a signatory and so clearly mis-interpret the convention as CONANI, the designated central authority in the Dominican Republic has done.

Offline TomD

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Re: Introduction
« Reply #4 on: February 01, 2010, 07:08:15 PM »
Dhanika,
This case demonstrates clearly, once again, that foreign governments must know that there are real consequences to breaking international laws. As I understand it, the Central Authority as defined under the Hague Convention has the responsibility to insure that the provisions of the convention are properly carried out, and that responsibility ultimately rests on the executive leadership of the country. That means the president of the Dominican Republic can and should be held responsible for this ruling by the CA; this issue rises to the level of one sovereign nation dealing with another.
How do we convince President Leonel Fernández to obey the law? We need the tools provided by US law as in HR3240 to impress these governments. Resolutions of our Congress are emphatically not enough.
We saw the threat of economic sanctions by Sen Lautenberg in Sean Goldman's case get the attention of the government of Brazil.  The ability of the US government to take such actions is critical, but David had to wait over 5 years until Sen Lautenberg really got pissed off before he wielded the "political hammer."
That's why we need to get HR3240 passed into law.
"All that is necessary for the triumph of evil is that good men do nothing." Edmund Burke

Offline dhanika

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Re: Introduction
« Reply #5 on: February 02, 2010, 06:11:00 AM »
Quote from: TomD;67051
How do we convince President Leonel Fernández to obey the law? We need the tools provided by US law as in HR3240 to impress these governments. Resolutions of our Congress are emphatically not enough.
We saw the threat of economic sanctions by Sen Lautenberg in Sean Goldman's case get the attention of the government of Brazil. The ability of the US government to take such actions is critical, but David had to wait over 5 years until Sen Lautenberg really got pissed off before he wielded the "political hammer."
That's why we need to get HR3240 passed into law.

As Tom has said if you are reading this and you are a United States citizen please call your congressmen and ask them to support HR3240 as well as HR3487.
 
The Hague Convention on the Civil Aspects of International Child Abduction has a noble intent but as David Goldman's case and my case and all the other cases illustrate it just seems to be a bunch of noble words.  Here is article 1 of the Hague Convention:
 
Article 1
The objects of the present Convention are -
a)   to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b)   to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States

 
There has been nothing 'prompt' in the case of Sean Goldman and now my case (among others).
 
We need to provide our government with the necessary tools to ensure compliance and the resolutions before the house will do so.
 
If all of us who are living through the nightmare of Child Abduction have to drag our cases through the media, such as David Goldman has had to do and now I am attempting to do, to get something done, it should tell everyone that there is something wrong with the convention and our government.  The convention needs to be reinforced and our government should also be told by the people it serves that we demand it as well.
 
What is more valuable to us as a nation than our children?

Offline LukieD

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Re: Introduction
« Reply #6 on: February 02, 2010, 09:22:07 AM »
Given the fact that the DR is a relatively new signator to the Hague Convention, I think the US State Dept (and USG) needs to make an example of this case as to how NOT to handle incoming Hague abduction cases. The DR needs to understand that rejecting solid Hague applications on the basis of a flawed understanding of the Convention is not the path they want to follow and will have unpleasant consequences.
 
The DR is important not so much from the standpoint of the sheer volume of cases, but because they have gotten off on the wrong foot and will land themselves on the non-compliant country list very soon. But so what, what are the consequencs for being labeled non-compliant on the annual State Dept report? Certainly there's no threat to the bilateral relationship between the two countries, and that needs to change.
 
We need to build a comprehensive How to Help page for Dhanika and start making some phone calls on his behalf. Dhanika, I know you emailed me but you need to post the contact info for all of your elected officials. Start another thread in your forum called "How to Help" and post the link to your website HTH page. I think the only thing missing is contact info for your two Senators and especially your Congressman, and perhaps the main local media outlets in your area.
 
Oh, and it was kind of them to spell Dhanika's name wrong in their response. Looks like the DR Central Authority, CONANI, is a first rate organization. Maybe we can ask Judge Peter Messitte to stop there on his next jaunt through Latin America so he can explain to them how the Hague Convention is supposed to work.
« Last Edit: February 02, 2010, 09:38:41 PM by LukieD »

Offline Bill33

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Re: Introduction
« Reply #7 on: February 02, 2010, 04:22:48 PM »
I hope you get your daughter back soon.  I read your webpage, very heartbreaking what this mother did to you and her daughter.  By the way, your website is very well designed, with great photos.  Let's hope the DR does the right thing soon.

Offline LukieD

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Re: Introduction
« Reply #8 on: February 02, 2010, 04:24:57 PM »
Quote from: Bill33;67116
I hope you get your daughter back soon. I read your webpage, very heartbreaking what this mother did to you and her daughter. By the way, your website is very well designed, with great photos. Let's hope the DR does the right thing soon.

I think we're here to talk about forcing them to do the right thing, and not just hoping for it. Keep us posted Dhanika.

Offline Bree

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Re: Introduction
« Reply #9 on: February 02, 2010, 09:18:09 PM »
Does Kali's mom (Sandra) also have citizenship in the DR?  I read on your site that Sandra's parents live in the DR.  Is that where they are from or where they have relocated to?  Does your daughter have a dual citizenship?
 
Could she (as a US citizen) not be extradited to Mass?  
 
I pray that you get to hold your beautiful little girl again very soon.
"Every parent who has a child and they tuck him in at night, or her in at night, and they wish the best and only the best and they will always protect the child and do whatever they can, but most of the time they don't have to prove it. I'm in the proving grounds, to myself and to my child.  I have to get him home and I will do whatever I have to. I'll never stop to save him."  --David Goldman

Offline dhanika

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Re: Introduction
« Reply #10 on: February 03, 2010, 06:42:18 AM »
Quote from: Bree;67138
Does Kali's mom (Sandra) also have citizenship in the DR? I read on your site that Sandra's parents live in the DR. Is that where they are from or where they have relocated to? Does your daughter have a dual citizenship?
 
Could she (as a US citizen) not be extradited to Mass?
 
I pray that you get to hold your beautiful little girl again very soon.

Hello Bree,
 
My daughter when she was born did not have dual citizenship as her mother was not a citizen of the Dominican Republic at the time. Sandra Zemialkowski, Kali's Mother, was at the time a United States citizen and a resident of the Dominican Republic (she had the equivalent of the green card in the US). Sandra's father is a United States citizen and happens to be the operations manager at the airport at the Dominican Republic's biggest resort town, Punta Cana. Sandra's mother happens to be a Dominican citizen though she is also a United States citizen.
 
In the Dominican Republic if your mother is a Dominican citizen (and your father is not) and you were not born in the Dominican Republic you generally have what is called 'provisional citizenship' meaning that until you turn 18 you have the rights of a citizen but are not a full citizen. When you turn 18 you have to decide whether you want to retain Dominican citizenship.
 
My daughter not having a Dominican Citizen mother when she was born was only a citizen of the United States. Subsequently however, Sandra, seemingly in an attempt to gain some advantage in the Hague process has claimed that she (Sandra) is now a Dominican citizen and has somehow obtained a passport for Kali (and by implication 'provisional' citizenship). Sandra herself never retained Dominican Citizenship when she turned 18 and so lost her citizenship to the DR when she turned 18. This explains why she had a resident card in the DR.
 
This is once again a complete failure of the Dominican Republic to uphold its very laws as in the Dominican Republic a child can become a citizen (if they dont already have the rigt of citizenship) only with the consent of both parents. This consent can take the form of the direct consent of both parents or a power of attorney by one parent to the other. As you can imagine I have not given any form of consent nor a power of attorney to anyone with respect to Kali. This further exemplifies the nature of the Dominican legal system.
 
I would also like to point out that Sandra's father, Walter Zemialkowski, as manager of operations and deputy manager of the Punta Cana airport had on one occasion threatened to use his 'connections' in the Dominican government to prevent me from ever seeing my daughter if I did not sign over full custody to Sandra and absolve her of any wrongdoing under the Hague Convention on the Civil Aspects of International Child Abduction. This may explain the bizarre and audacious response by the Dominican Republic's CA, CONANI. Sandra herself attempted to manufacture false charges against me by attemting to bribe a witness during one of my visits to the Dominican Republic to say that I assaulted her.
 
At this point, and so far given what has happened, there seems to be very little faith on my part on the credibility of the legal system in the Dominican Republic.
 
Thank you very much for you support.

Offline dhanika

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Re: Introduction
« Reply #11 on: February 04, 2010, 01:10:24 AM »
Just wanted to update my case.  I have not seen my daughter in person since February 2009 though I did see her through a webcam in April 2009.

Since it is impossible for me to contact her mother directly to find out how my daughter is doing I had to resort to asking the department of state to conduct a welfare and whereabouts check.  A welfare and whereabouts check occurs when members of the US embassy attempt to visit my daughter and take pictures and perform a general welfare check on her.  This has to be done apparently with the consent of the abducting parent.

I had sent in a request to the State Department to conduct a welfare and whereabouts check in June 2009.  It is now February 2010 and a welfare and whereabouts check has yet to be done.  Apparently at this time Sandra is refusing to allow the US embassy to perform a welfare and whereabouts check on Kali without the presence of a representative from CONANI, the Dominican Republic's central authority, being present as well.  This close relationship between CONANI and Sandra is very troubling since CONANI according to the Hague Convention on the Civil Aspects of International Child Abduction is supposed to be acting on my behalf to help return Kali.

It is pretty shocking too that it is over 7 months since I had asked for a welfare and whereabouts check and one has not been done yet.

Offline UD_student

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Re: Introduction
« Reply #12 on: February 06, 2010, 10:18:55 PM »
Quote from: dhanika;67243
It is pretty shocking too that it is over 7 months since I had asked for a welfare and whereabouts check and one has not been done yet.

Carlos mentioned in his subforum that he requested a welfare check for Sage last year and still hasn't heard anything from the US State Dept in response to his request. Sadly, I think it is another example of how the State Dept doesn't prioritize abducted children.

I concur with others that your website is well designed. I'll add mentioning your case to officials at the state dept when I speak with them about a response to the letter from Tom Lantos and getting LBPs meetings with the SOS as requested.
« Last Edit: February 06, 2010, 10:21:19 PM by UD_student »

Offline JoseGrullon

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Re: Introduction
« Reply #13 on: February 12, 2010, 10:59:30 PM »
When was your child taken to the Dominican Republic?
Did you have rights of custody then?
Where you married to the mother of the child?
What does the Mass Law state about children born out of wedlock?
Did you sign a Voluntary Acknowledgment Of Parentage?
When did you file the petition?
Was Mass. the habitual place of residence of your child?
Can courts other than the ones from the habitual place of residence determine custody of children who do not live in their jurisdiction?

Is your child really missing?

JG

Offline JoseGrullon

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Re: Introduction
« Reply #14 on: February 12, 2010, 11:14:12 PM »
Quote from: dhanika;67243
Just wanted to update my case.  I have not seen my daughter in person since February 2009 though I did see her through a webcam in April 2009.

Since it is impossible for me to contact her mother directly to find out how my daughter is doing I had to resort to asking the department of state to conduct a welfare and whereabouts check.  A welfare and whereabouts check occurs when members of the US embassy attempt to visit my daughter and take pictures and perform a general welfare check on her.  This has to be done apparently with the consent of the abducting parent.

Why is it impossible for you to contact the mother or your child? Can't you travel to the DR? Haven't you been there before? I know for a fact that Goldman went to Brazil to see his son... Very interested in your answer: JG


I had sent in a request to the State Department to conduct a welfare and whereabouts check in June 2009.  It is now February 2010 and a welfare and whereabouts check has yet to be done.  Apparently at this time Sandra is refusing to allow the US embassy to perform a welfare and whereabouts check on Kali without the presence of a representative from CONANI, the Dominican Republic's central authority, being present as well.  This close relationship between CONANI and Sandra is very troubling since CONANI according to the Hague Convention on the Civil Aspects of International Child Abduction is supposed to be acting on my behalf to help return Kali.

It is pretty shocking too that it is over 7 months since I had asked for a welfare and whereabouts check and one has not been done yet.
« Last Edit: February 12, 2010, 11:16:22 PM by JoseGrullon »