Individual Abduction Case Updates

Several left-behind parents have shared recent updates to their cases — some of them encouraging, some of them disappointing, all deserving of your attention and in need of your support.

When reading the below case updates, please keep in mind the following:

  • These are not custody issues. These cases are abductions under The Hague Convention. It is clear under the terms and spirit of the Convention that the home state of competent jurisdiction determines ALL custodial issues.
  • Bringing an abducted child home does not separate the child from the abducting parent. It is the abducting parent’s choice to live wherever he or she chooses, but again, “The competent court of jurisdiction” meaning the Home State of the child prior to the abduction, which is the habitual residence of the child and under the law, determine ALL custodial issues.
  • To highlight Brazil: It’s unacceptable for a country to return an abducted child only when the abducting parent is deceased. The most recent decisions in the Birotte and Weinstein cases exemplify the systemic problem with Brazil and many non-complying countries; and do not go into other likely underlying factors such as nationalism and gender bias when the abductor is a mother. The initial ruling in the Birotte case, though much too long in the coming, was encouraging as it demonstrated that some judges in Brazil do understand the treaty law; however, as shown by Minister Andrighi’s ruling, there are still high level judges that either do not yet understand or refuse to comply with the treaty law.

CASES IN BRAZIL

BIROTTE (US)Brazil continued to demonstrate ongoing non-compliance for the Hague Convention on Thursday, April 29, when Minister Nancy Andrighi of the Superior Court of Justice (STJ) ruled that Kelvin Birotte, Jr. would stay with his mother, Hilma Caldeira, a former Brazilian Olympian, in Brazil until a final ruling is made on a yet-to-be-filed appeal to the April 14 ruling by the 19th district court in Bellarizante, Brazil, that the boy was to be returned to his father, Kelvin Birotte, Sr., in the United States. Kelvin Sr. was notified of the ruling on Monday, April 19, but before he even boarded the plane to Brazil, he was informed that Interpol was not able to locate Hilma or Kelvin Jr., who has been illegally retained in Brazil since July 2006.

    WHO TO CONTACT

  • Congressman John Culberson – Phone: (202) 225-2571, Fax: (202) 225-4381
  • Congressman Al Green – Phone: (202) 225-7508, Fax: (202) 225-2947
  • Senator John Cornyn – Phone: (202) 224-2934, Fax: (202) 228-2856
  • Senator Kay Bailey Hutchison – Phone: (202) 224-5922, Fax: (202) 224-0776

WEINSTEIN (US) After waiting nearly two years for a ruling on his Hague case, in late February a first-level federal judge ruled against Timothy Weinstein. Like so many other Brazilian judges, the judge in this case demonstrated little understanding of the Hague Convention and proceeded to treat Timothy’s case like a domestic custody battle. In March, Brazil’s Attorney General (AGO) filed an appeal to the first-level ruling and seeking the immediate return of Timothy’s son, Paul, and daughter, Anna, to the United States. Timothy has been fighting for their return since the summer of 2006.

    WHO TO CONTACT

  • Congressman Jason Altmire – Phone: (202) 225-2565, Fax: (202) 226-2274
  • Senator Robert Casey – Phone: (202) 224-6324, Fax: (202) 228-0604
  • Senator Arlen Specter – Phone: (202) 224-4254, Fax: (202) 228-1229

CASES IN THE DOMINICAN REPUBLIC

ATHUKORALA (US) In April 2009, then 20-month-old Kali Soleil Athukorala was abducted to the Dominican Republic (DR) by her mother, Sandra Zemialkowski. The DR became a signatory to the Hague Convention in June 2007. In Hague cases, the role of a country’s Central Authority is to represent the child in defense of the child’s right to return to the country of habitual residence. However, the DR’s Central Authority, having been approached by Kali’s mother immediately upon their arrival in the DR, seems to be handling this case as a custody battle instead of a Hague case and has twice flip-flopped in their position of representation for Kali. Dhanika Athukorala, Kali’s father, has been working tirelessly to gain his daughter’s return to the United States. An initial hearing was held in April, with a ruling expected this week.

    WHO TO CONTACT

  • Congressman Richard Neal – Phone: (202) 225-5601, Fax: (202) 225-8112
  • Congressman John Olver – Phone: (202) 225-5335, Fax: (202) 226-1224
  • Senator Scott Brown – Phone: (202) 224-4543, Fax: (202) 228-2546
  • Senator John Kerry – Phone: (202) 224-2742, Fax: (202) 224-8525

CASES IN JAPAN

TOLAND (US) Paul’s daughter, Erika, was abducted in July 2003 by her mother, who subsequently died in October 2007. Since the death of her mother, Erika continues to be held in Japan by her maternal grandmother. Japan is a non-Hague country and has never returned a child to the United States. In March 2010, several left-behind parents with children abducted to Japan joined together and founded Bring Abducted Children Home (www.BACHome.org). For additional information on recent actions relating to Japan abductions, see below.

    WHO TO CONTACT

  • Congressman Jim Moran – Phone: (202) 225-4376, Fax: (202) 225-0017
  • Senator Mark Warner – Phone: (202) 224-2023, Fax: (202) 224-6295
  • Senator Jim Webb – Phone: (202) 224-4024, Fax: (202) 228-6363

CASES IN MEXICO

BERMUDEZ (US) Carlos Bermudez has been fighting for the return of his son, Sage, from Mexico since the summer of 2008. On March 9, 2010, the 8th Federal District Court in the State of Guanajuato Mexico denied the appeals filed against the order ruling that Sage Bermudez be “immediately returned” to his father, upholding the decision of the State Supreme Court. Sage’s mother filed yet another appeal, which is expected to be heard by the second level federal courts within three months of the file date.

    WHO TO CONTACT

  • Congressman David Price – Phone: (202) 225-1784, Fax: (202) 225-2014
  • Senator Richard Burr – Phone: (202) 224-3154, Fax: (202) 228-2981
  • Senator Kay Hagan – Phone: (202) 224-6342, Fax: (202) 228-2563

CASES IN THE UNITED STATES

HINDLE (UK) In the same week that Florida’s state congress and senate voted to pass into law the Child Abduction Prevention Act, Florida’s 5th District Court of Appeal ruled against Karl Hindle. The judge, although acknowledging the fact that Florida is not Emily’s “home state,” cited in the ruling Florida’s Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and disregarded the United States obligation under the Hague Convention. Karl, who has been fighting for custody of Emily since February 2003, when her American mother brought her to the United States at 11 months of age, plans to appeal this latest ruling in U.S. Federal Court.

    WHO TO CONTACT

  • Senator George LeMieux – Phone: (202) 224-3041, Fax: (202) 228-5171
  • Senator Bill Nelson – Phone: (202) 224-5274, Fax: (202) 228-2183
  • Governor Charlie Crist – Phone: (850) 488-7146, Fax: (850) 487-0801
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