US Dept. of State Compliance with Hague Convention Report 2010
Kali's abduction to the Dominican Republic was noted as a "notable case" in the United States Department of State's 2010 compliance with the Hague Convention which was submitted to congress. As quoted from page 28 of that report:
".......The new custody arrangement allowed the mother to travel abroad with the child, requiring her to return to the United States at regular intervals according to a parenting schedule approved by the court. The mother has since violated the parenting schedule and has wrongfully retained the child in the Dominican Republic since April 2009. The Dominican Central Authority (DRCA) responded to the LBP’s application for return under the Convention with a letter evincing an incorrect understanding of various articles of the Convention. The USCA repeatedly asked the DRCA for clarification, but did not receive any substantive responses by the end of the reporting period." -- 2010 report on compliance with the Hague Convention.
Wikipedia also quotes the report here.
My conclusion based on my experience
Based on my experience with the Dominican Republic so far and their designated Central Authority CONANI (National Council for Childhood and Adolescence or in spanish Consejo Nacional Para la Niñez y la Adolescencia) I have drawn the following conclusions:
- The Dominican Republic is not complying with its' obligations to return Internationally Abducted Children.
- The Domincian Republic does not enforce its own laws.
- CONANI is not serious about enforcing the HCCH.
- CONANI cannot be trusted to follow the law of the Dominican Republic.
Please note: The United States State Department, Office of Children's issues has released their report on compliance with the Hague Convention on the Civil Aspects of International Child Abduction for 2010. Kali Soleil's abduction is listed on page 28 as a notable case though they do not identify Kali Soleil's abduction by name. The Office of Children's Issues is required to report to congress every year on the compliance of member nations.
All parents who are considering sending their children to the Dominican Republic should be very concerned about allowing their children to travel there. Avoid sending your children to the Dominican Republic even if you accompany them and have even the slightest concern that the other parent may try to abduct your children. The Dominican Republic has great laws on paper that give the appearance of taking International Child Abduction seriously, but in reality they are not serious about it.
Basis #1 for my conclusions: The failure of the Dominican Republic to uphold it's laws
Failure to honor an international treaty on child abduction
The Hague Convention on the Civil Aspects of International Child Abduction (HCCH) is now part of the Dominican Republic's law. It requires the return of abducted children within 6 weeks of receiving a valid petition. It has now been over 10 months since I filed my petition and Kali Soleil still has not been returned home.
The Dominican Republic ascended to the HCCH in June 2007. Apparently trying to tell the world that it is serious about child abduction. However, what use are promises without actually enforcing the agreements?
Failure to honor Dominican Law with respect to citizenship
Under the Dominican Republic's law before a minor can be granted Dominican provisional citizenship both parents must provide consent. I have not provided any consent in any form for Kali to be given Dominican Citizenship yet somehow Sandra Zemialkowski has obtained Dominican Citizenship for Kali Soleil in an attempt to gain advantage in any child abduction case.
Failure to provide 'due process' under it's own laws
The Dominican Republic held a custody and child support hearing without my prescence. The hearing was held after Kali Soleil's abductor Sandra Clarissa Zemialkowski filed a complaint for custody and child support. Sandra Clarissa Zemialkowski filed this complaint after deciding to not honor her own promises to the courts in Massachusetts that have jurisdiction over Kali Soleil's custody and care.
I was not properly served as is required under Dominican Law and the hearing was held without providing me due process.
Basis #2: The blatant failure of CONANI
Blatant mis-interpretation of the HCCH
CONANI is the Dominican Republic's designated Central Authority under the HCCH. This means that CONANI is the institution that the Dominican Republic has designated as the one to enforce it's obligations under the HCCH.
CONANI, represented by Christian Maldonado has obstructed and interfered with the enforcement of the HCCH in my case. Christian Maldonado an attorney for CONANI made the following arguments with respect to why he believed that my petition is invalid (I have bolded the text with the most relevance):
I am writing to send you our observations concerning the case of minor child Kali Soleil Athukorala Zemialkowski, daughter of Ms. Sandra Clarissa Zemialkowski, with a view to helping Ms. Ivvette of the U.S. Central Authority with her translation for a better understanding of our correspondence.
Accordingly, please note 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.
National Council for Childhood and Adolescence (CONANI)
Phone: (809) 567-2233, ext. 1140
Fax: (809) 567-2494
What is truly incredible about Mr. Cristián Maldonado's arguments are that he at times re-interprets the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. In essence Mr. Cristián Maldonado is slapping the treaty in the face.
Here are the problems with his arguments:
- [Item IV] Article 16 of the HCCH -- "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"
Mr. Cristián Maldonado / CONANI if you read their rationale seem to have not realized that the "Contracting State to which the child has been removed" is NOT Massachusetts but rather the Dominican Republic. They have in essence re-interpreted this article.
- [Item IV] Article 19 of the HCCH -- "A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue"
Mr. Cristián Maldonado / CONANI again seem to be missing the point that NO decision can be made in Massachusetts under the Hague Convention with respect to whether Kali should be returned from the Dominican Republic. The courts in Massachusetts have simply stated that according to the law of the Commonwealth of Massachusetts, as allowed under Article 15 of the HCCH that Kali is being wrongfully retained in the Dominican Republic. Kali has not been abducted to Massachusetts but to the Dominican Republic.
In addition, the purpose of the HCCH is to determine what the proper jurisdiction is that should decide and rule on matters relating to Kali Soleil's custody and care. It does not prevent any custody hearings in Kali Soleil's place of habitual residence from continuing only custody hearings in the Dominican Republic since Kali is in the Dominican Republic unlawfully.
- [Item V] 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."
Again, the SCOPE of the convention is for the RETURN of Kali Soleil Athukorala to Massachusetts. In other words, CONANI or the Dominican Courts cannot impose a bond on me for the costs they will incurr in the proceedings that take place to determine whether Kali Soleil is to be returned to Massachusetts.
The courts in Massachusetts imposed a bond of $25,000.00 on Sandra Zemialkowski to ensure that if Sandra did not abide by the terms of the temporary custody orders, orders that she agreed she would obey in her own words before being allowed to leave Massachusetts, I would be able to use those funds to pay for any legal action I need to take to get Kali returned. As such the bond was part of the custody case not the Hague Petition as Mr. Mr. Cristián Maldonado attempts to say.
- [Item VII] My rights of custody -- Mr. Cristián Maldonado / CONANI is apparently interpreting the law of the Commonwealth of Massachusetts. This is spite of the fact that a court of law from the Commonwealth of Massachusetts has already ruled that I have had rights of custody (as defined under the HCCH) and I had been exercising those rights of custody since Kali's birth.
Mr. Cristián Maldonado / CONANI seem to clearly ignore the legal documents provided to them with my petition. Instead he somehow decides he is the 'competent' authority to interpret the law of the Commonwealth of Massachusetts. Imagine the outcry if an Attorney from the United States attempted to interpret the law of the Dominican Republic?
Mr. Mr. Cristián Maldonado / CONANI also somehow argues that the act of unlawfully retaining Kali Soleil Athukorala somehow means that Sandra Zemialkowski "assumes" responsibility for Kali Soleil's custody and care. In other words, by abducting Kali Sandra Zemialkowski somehow has under the law full custody of Kali Soleil Athukorala.
- Failure to enforce the HCCH -- CONANI the Dominican Republic's designated central authority has failed to enforce article 16 of the Hague Convention. A custody hearing was held sometime in February, 2010 in which a default judgment was handed out with respect to Kali's custody and care. This hearing was held without the proper due process under the Dominican Republic's own laws and in violation of Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction which is also part of the Dominican Republic's laws.
In essence Sandra Zemialkowski abducted Kali Soleil Athukorala to the Dominican Republic and is unlawfully retaining Kali Soleil in the Dominican Republic and now is supposed to get Child Support.
CONANI has failed to honor it's obligations under article 7 of the HCCH which requires it to do everything it can to ensure the return of Kali Soleil Athukorala to her habitual residence once in receipt of a valid petition (which they have had since August 2009).
Obstruction and interference in the execution of an International Convention on Child Abduction
Mr. Cristián Maldonado / CONANI's actions have obstructed and interfered with the proper execution of the Hague Convention on the Civil Aspects of International child abduction.
Obstruction -- Mr. Cristián Maldonado / CONANI's initial and blatant mis-representation of the Hague Convention resulted in over 8 months of delays before a judicial proceeding was granted to me. This despite the fact that Kali was supposed to have been returned within 6 weeks of receiving a valid petition.
Mr. Cristián Maldonado / CONANI have not provided any competent arguments against the validity of my petition.
Interference -- According to article 7 of the Hague Convention on the Civil Aspects of International Child Abduction a central authority once in receipt of a valid petition must do everything it can to ensure the return of the abducted child to her habitual residence. Mr. Cristián Maldonado / CONANI actively participated in the initial hearing on Kali Soleil's return and provided arguments to oppose my petition this despite have provided no competent argument against the validity of my petition nor having denied my petition.
Far reaching implications
The seriousness of Mr. Cristián Maldonado / CONANI's behavior and by extension that of the Dominican Republic is very clear. They do not seem to honor their own laws. How many parents have already suffered and how many will suffer in the future?
It is very clear that everyone should be weary of travelling or allowing their children to travel to the Dominican Republic. It seems the law will not be on your side.