Jessica L. Berrien | Family LawJessica L. Berrien | Family Law
Attorney
Jessica L. Berrien
is a Northampton, Massachusetts attorney who represents clients in civil litigation matters including family law, practicing primarily in the Western Massachusetts divisions of the Massachusetts Probate and Family Court.
Practice Areas
Divorce
Child Custody
Child Support
Alimony / Spousal Support
Same-Sex Divorce
Separation Agreements
Property Division
Interstate Removal
Unmarried Partner Disputes
Paternity Actions
Post Divorce Actions
Modifications
Contempt Actions
Domestic Violence
Restraining Orders
Grandparents Rights
International Kidnapping
Adoptions
Jessica Berrien | Family Law

Belchertown Custody Struggle Escalates:
Kidnapping charged in two-year dispute

Daily Hampshire Gazette, by James Lowe,
November 19 2009

NORTHAMPTON - A two-year-old international custody battle resulted in criminal charges Tuesday when a judge issued an arrest warrant for a former Belchertown woman accused of abducting her 2-year-old daughter.

Sandra Clarissa Zemialkowski, who according to court records now lives in Santo Domingo in the Dominican Republic, faces a charge in Hampshire Superior Court of kidnapping a minor relative.
An indictment handed up Tuesday by a Hampshire County grand jury gives April 13, 2009, as the date of the alleged kidnapping. But records in Hampshire Family and Probate Court show Zemialkowski took her daughter to the Dominican Republic in December 2007, four months after the girl was born, and that April 13 was the court-ordered deadline for Zemialkowski to return the girl to her father, Dhanika Athukorala of 1130 Federal St., Belchertown.

Family Court Judge Gail Perlman earlier this year gave Athukorala full legal custody of the girl, Kali Soleil Athukorala, after Zemialkowski refused to appear for a hearing meant to settle the custody dispute.

Attempts to reach Zemialkowski were unsuccessful Wednesday. A message left for Laura Arbeitman, who represented her in Family Court, was not immediately returned.

Custody dispute
A telephone number listed for Athukorala was disconnected, but a Web site called bringkalihome.net tells his side of the story.

He claims Zemialkowski "deceptively removed" Kali from the country in December 2007, telling him she planned to take the girl on a temporary visit to relatives in the Dominican Republic.

Court records indicate Athukorala agreed to let Zemialkowski keep Kali in the Caribbean nation for the next two months. When they didn't come back, Athukorala sought a court order for the girl's return.

The Family Court file on Athukorala's case - three thick volumes comprising hundreds of pages - shows the custody dispute took many twists and turns.

At one point the parents reached an agreement where Zemialkowski would bring Kali to the United States for one week every three months. Under the agreement, Athukorala was free to visit Kali at any time in the Dominican Republic, and Zemialkowski was to arrange regular contact between the two via webcam.

Perlman chastised Zemialkowski earlier this year after Athukorala traveled to the Dominican Republic but wasn't able to see his daughter, according to a filing by the judge.

Zemialkowski did not attend a scheduled hearing in April, and her attorney said Zemialkowski had "no intention" of appearing in court or bringing Kali to the United States to visit her father, Perlman wrote.

Writing after the hearing, Perlman said: "This court specifically finds that the defendant mother, as demonstrated by her actions, has engaged in bad faith litigation, has wrongfully retained the child in the Dominican Republic, has wrongfully interfered with the plaintiff father's relations with and joint custody of the child, and that it is in Kali's best interests to be returned to the United States immediately and be placed in the sole care and custody of the plaintiff father."

The custody dispute became a criminal matter Tuesday after the 23-member grand jury, which meets in secret, handed up its indictment against Zemialkowski.

To reach an indictment, a grand jury must find "probable cause" to charge a person with a crime - in this case, kidnapping a minor relative. The charge carries a potential penalty of up to five years in prison or a fine of up to $5,000.

Assistant Northwestern District Attorney Jane Mulqueen said this may be the first international kidnapping case for her office.

Mulqueen, who presented evidence to the grand jury, said that when Athukorala turned to the Belchertown Police Department this summer to file a missing person report, police referred him to her office.

Hampshire Superior Court Judge Bertha Josephson issued the arrest warrant Tuesday shortly after the grand jury returned the indictment.
Mulqueen said many legal wrinkles must be ironed out before an arrest can be made.

The Dominican Republic in 2007 signed the Hague Convention on the Civil Aspects of International Child Abduction, which requires children in custody disputes to be returned to the "state of their habitual residence." (The United States signed in 1981.)

While the convention would seem to dictate that Kali should be returned to the U.S., Mulqueen said Dominican authorities have a different interpretation of the situation, and have refused to facilitate the girl's return.

She said her office will work closely with the State Department and the U.S. attorney's office to reach an agreement with Dominican authorities.
"We're at the very, very, very beginning stages of this, so I wouldn't want to comment on what's going to happen next," Mulqueen said.

James F. Lowe can be reached at jlowe@gazettenet.com.