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.
