Treaty Confusing for Nations, as well as Parents in Custody Disputes
Daily Hampshire Gazette, by James Lowe
March 6, 2010
NORTHAMPTON - At the heart of the custody dispute over 2-year-old Kali
Soleil Athukorala is an international treaty her parents - and the two
countries they live in - interpret in completely opposite ways.
The Hague Convention on the Civil Aspects of International Child Abduction
lays down the ground rules for any case where one parent takes a child
across a country's borders without the other parent's consent. The treaty
is signed by 81 countries, including the United States and the Dominican
Republic, where Kali now lives with her mother.
Primarily the convention is used to determine where custody proceedings
should take place, based on the "habitual residence" of the child in question.
It is also used to enforce parents' visitation rights.
Habitual residence is essentially "where the center of a child's life is," the
place they're used to going to school, having friends, seeing a pediatrician
and so on, said Regina Hurley, a Boston attorney who represents Kali's father,
Dhanika Athukorala. Hurley said she's handled about eight international abduction
cases, and leads seminars for other lawyers about the Hague convention. A child's
habitual residence can change overnight if both his parents agree to move, Hurley
said. But it may not if one parent opposes the child being taken away.
The distinction is moot if a child is abducted to a country that hasn't
signed onto the Hague convention, Hurley said, and the left-behind parent
is essentially at the mercy of the other country's legal system.
In his efforts to bring Kali back, Athukorala argues that the U.S. is her
habitual residence, and the Hampshire Probate and Family Court agrees.
Kali was born and lived the first four months of her life here.
But although the Dominican Republic signed onto the convention in 2007,
authorities there do not agree the U.S. is Kali's habitual residence. The
National Council for Childhood and Adolescence (known as the CONANI), argues
Kali's habitual residence is Santo Domingo because her mother, Sandra Zemialkowski, "assumed responsibility
for the care and custody" of Kali immediately upon taking her overseas.
The CONANI and Zemialkowski's attorney, Jose Grullon, argue Family Court
Judge Gail Perlman violated two articles of the Hague convention by giving
Athukorala sole legal custody of the girl.
"International law cannot be overlooked, and that is exactly what the Probate
and Family Court did," Grullon said. "They invoke the Hague convention
and then they violate it."
Jessica Berrien, a Northampton family law attorney who represents Athukorala
sees it differently. She called Perlman very careful and thorough in her
approach to the treaty. "They've completely misinterpreted it," Berrien said
of the CONANI. Berrien said this is the first international custody case she's
handled.
The State Department has reviewed the CONANI's decision and is appealing
it, Athukorala said.
When a parent files a valid petition through the Hague convention, his
or her child is supposed to be returned within six weeks, but in practice,
it always takes longer, Hurley said. In her experience, Zimbabwe has had
the fastest turnaround time - two months.
Delays, she said, can be the result of unfamiliarity with the treaty, especially
in countries like the Dominican Republic that have signed on only recently.
"I wonder sometimes if what's going on is it's new, and the legal systems
aren't used to dealing with it," Hurley said.
In December Athukorala traveled to Washington to attend a congressional
hearing on two pieces of federal legislation aimed at preventing and resolving
international abductions. He wore a T-shirt with his daughter's picture
on it. House Resolutions 2702 and 3240, both sponsored by New Jersey Rep.
Christopher Smith, aim to create penalties for convention signatories that
do not comply with the treaty, Brazil in particular.
James F. Lowe can be reached at jlowe@gazettenet.com.