Hello Yvette,
As you know a judgment was handed out by a Dominican Court on Friday May 7th, 2010, regarding the abduction of my daughter Kali Soleil Athukorala. The judgment that was given can be viewed by clicking on the link below, which will allow you to download the judgment in its original Spanish version:
http://www.bringkalihome.net/portals/0/legal_documents/conani/Sentencia_0507.pdf I do not have a translation of it however I have been briefed by my Attorney as to its contents. While the judgment is against the return of Kali to her home and habitual residence in Belchertown, Massachusetts, there are very obvious problems with the judge’s rationale that will be challenged in the proper forum for challenging a Dominican Court’s judgment.
What is very troubling and what I would like to draw your attention to is the very suspicious and objectionable conduct and role that the Dominican Republic’s designated Central Authority (CA), CONANI, and its representative Mr. Christian Maldonado have played in the judge’s decision. In particular Mr. Maldonado became an active participant in the Judicial Proceedings that began in March, 2010, providing a point of view that contradicts CONANI’s very responsibility under Hague Convention on the Civil Aspects of International Child Abduction (HCCH).
Under Article 7 of the HCCH it is the responsibility of the Central Authority or an intermediary (which apparently in this case is Mr. Christian Maldonado) to, upon receiving a valid petition:
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures -
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
-- HCCH (http://www.hcch.net/index_en.php?act=conventions.text&cid=24)
Mr. Maldonado’s actions have violated items 7c) and 7f) and in fact he has not provided any legal counsel under 7g).
The only possible reason for not fulfilling the obligations under Article 7 might be that my petition is not valid. In fact, even with this regard Mr. Maldonado has provided no competent rationale to show that my petition is invalid. To the contrary Mr. Maldonado’s arguments are most notable for their very lack of competence.
Mr. Maldonado’s initial rationale for denial of my petition stated the following:
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.
I would like to comment with the following:
I) It is irrelevant according to the Hague Convention if Kali’s abductor came to CONANI first. Validity of my petition is based solely on the merits of my petition and supporting evidence. It is up to a judge to hear the abductor’s side of the story not CONANI.
II) According to Item #IV of Mr. Christian Maldonado’s rationale he claims that article 16 of the HCCH states that judicial authorities in Massachusetts cannot rule on the custody of Kali. Here is Article 16 of HCCH:
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice
Looking at the actual text from Article 16, Mr. Christian Maldonado seems to have selectively left out key facts from his interpretation of Article 16. In particular he somehow seems to ignore the fact that Kali was abducted to the Dominican Republic and not to Massachusetts. In addition, Mr. Christian Maldonado failed to suspend all custody hearings in the Dominican Republic and a hearing for child support was held in the Dominican Republic and a judgment awarded against me even when it was done without proper due process under Dominican Law.
III) According to Mr. Christian Maldonado’s item #V he then claims that the Judge in Massachusetts violated Article 22 of the HCCH by requiring a bond before Kali was allowed to be removed temporarily to the Dominican Republic.
In fact article 22 of the HCCH says the following:
Article 22
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
The scope of the HCCH again is not to determine custody but to return an abducted child to their habitual residence.
IV) In Item #VI of Mr. Christian Maldonado’s rationale he claims that habitual residence is where the child’s life is based together with the person who takes care of him. Mr. Christian Maldonado again has somehow failed to comprehend that Kali Soleil was living in Massachusetts and so was Sandra Clarissa Zemialkowski, Kali’s abductor. He is now somehow arguing that since Kali was abducted and now living in the Dominican Republic that that is where Kali’s place of Habitual Residence is.
V) In Item #VII, again Mr. Christian Maldonado has failed to take into account the evidence provided to him in the petition. Mr. Maldonado somehow decides to interpret the law of the Commonwealth of Massachusetts, claiming that my only claim to custody is that I am Kali’s father and that under Massachusetts law that does not mean I have custody. Yet Mr. Christian Maldonado has clearly ignored that I have custody by court order which is clearly defined under Article 3 as a judicial or administrative decision.
This clear lack of competence and ignorance of the evidence supplied in the petition by Mr. Christian Maldonado’s rationale is very troubling. It is very troubling because it lead to an 8 month delay in the execution of the HCCH. This is a direct contradiction to the spirit of Article 11 which requires expeditious action on the behalf of the CA.
In addition the mention of prior of prior contact with Kali’s abductor as a basis for rationalizing denial of my petition is very suspicious at the very least. Was Mr. Christian Maldonado rendering these outrageous interpretations of the HCCH due to influence from contact with Kali’s abductor?
Mr. Christian Maldonado’s behavior becomes even more suspicious and objectionable in his conduct during the Judicial Proceedings. The initiation of Judicial Proceedings means that my petition has been accepted as valid under the HCCH. In fact, CONANI accepted my petition in February, 2010 and gave me a court date of March 11th, 2010.
Mr. Christian Maldonado seems to be pressing his own case regarding the validity of my case even after he and CONANI accepted the case. Again, referring to Article 7 of the HCCH CONANI, once in receipt of a valid petition is required to act and take every measure necessary to ensure the prompt return of Kali Soleil Athukorala.
Mr. Christian Maldonado submitted the following document to the judge hearing my case:
http://www.bringkalihome.net/portals/0/legal_documents/conani/conani_1of3.pdfhttp://www.bringkalihome.net/portals/0/legal_documents/conani/conani_2of3.pdfhttp://www.bringkalihome.net/portals/0/legal_documents/conani/conani_3of3.pdf Whether Mr. Christian Maldonado’s position is the actual position of the Dominican Republic is a matter for the Dominican Government to decide. However, what is clear at this time is that Mr. Christian Maldonado’s opinion as it concerns me and the Department of State should be interpreted as the Dominican Republic’s official position in my case since Mr. Christian Maldonado is the representative of the Dominican Republic’s designated Central Authority.
I would ask that the State Department seriously review my case and determine whether the Dominican Republic is actually showing a pattern of non-compliance with the HCCH. It is clear to me and I would argue top any reasonable person even one without an expertise in law that CONANI and Mr. Maldonado’s actions have shown a pattern of non-compliance.
I intend to bring this matter to the attention of my elected representatives in government. Child Abduction is an extremely serious matter and the Dominican Government told the international community that it was serious about it by ascending to the HCCH in June 2007. There now needs to be accountability.
Is the Dominican Republic supporting the abduction of a United States citizen?
