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

Fighting for Kali:
An International Custody Battle Plays Out in Two Countries' Courts

Daily Hampshire Gazette, by James Lowe
March 6, 2010

NORTHAMPTON - Kali Soleil Athukorala Zemialkowski doesn't know about the bitter custody battle that has become the center of legal proceedings in two countries and turned her parents' lives upside down.

Now 2½, Kali has spent most of her life in the Dominican Republic with her mother, Sandra C. Zemialkowski, (pronounced zem-all-KOW-ski).
Her father, Dhanika K. Athukorala (ahh-thoo-CORE-ahh-la) of Belchertown, has been trying to bring her back for two years.

Along the way a judge presided over the child custody case without Zemilakowski present, and awarded full legal custody of the girl to Athukorala.

After Zemialkowski ignored a court order to return Kali by April 13, 2009, the Northwestern district attorney's office began pursuing kidnapping charges against her. Zemialkowski has been indicted, but not arraigned, on a charge that carries a sentence of up to five years in prison. For now, though, the case is at a standstill because the Dominican Republic does not agree Zemialkowski violated any laws.

In a recent telephone interview, Zemialkowski, 39, said she has been wronged - harassed by the father of her child as well as targeted by judicial officials trying to exceed their bounds.

"I just can't believe how far how far this charade has gone," Zemialkowski said by phone from Santo Domingo, capital of the Dominican Republic. "I feel abused. I feel taken advantage of."

Athukorala, 37, said Zemialkowski hasn't allowed him to see his daughter - in person or even by Web cam - in more than a year. He said Zemialkowski has made it impossible for him to have a relationship with his daughter. Even so, he said, he won't be deterred in his efforts to get Kali back.

"My biggest fear is that my daughter will look back someday and think I gave her up," Athukorala said in a recent interview at his lawyer's office in Northampton.

Unusual case
Custody disputes involving parents living in different countries are very rare for Hampshire Probate and Family Court, said Assistant Judicial Case Manager Beth Crawford. She said just two such cases were initiated in 2009.

"It's one of the most complicated areas of the law that we deal with," Crawford said.

It's also unusual, she said, for a custody case to progress as far at Athukorala's has. The vast majority of cases never go to trial, instead settled by the parents on their own or with help from mediators, she said.
Hampshire County saw 612 divorce cases and 301 paternity suits in fiscal 2009, according to state records. Crawford noted, however, that not all divorces involve child custody, and paternity cases may pertain to child support payments rather than custody.

Federal data indicates that in fiscal 2008 there were 1,082 cases of children abducted by a parent from the U.S. to foreign countries, including 25 to the Dominican Republic.

One high-profile case with similarities to Kali's is that of 9-year-old Sean Goldman, who was taken to Brazil by his mother. After five years of international legal wrangling, Sean's father brought him back to New Jersey last December.

A Web site established to advocate for Goldman's return now features information about Athukorala and other parents seeking the return of their children from other countries.

Legal wrinkles
The Dominican Republic, which shares the Caribbean island of Hispaniola with Haiti, is a sovereign nation. Although both the Dominican Republic and the U.S. have signed a treaty that deals specifically with international custody disputes, the two countries differ on how the treaty applies to Kali's case.

After Athukorala filed a petition through the U.S. State Department to have Kali returned to him, the Dominican government took Zemialkowski's side. In an undated letter, the National Council for Childhood and Adolescence opined that Hampshire Probate and Family Court Judge Gail Perlman misinterpreted the treaty, and didn't have the authority to make Athukorala the girl's sole legal guardian.

Jose Grullon, Zemialkowski's lawyer in the Dominican Republic, said in a phone interview that Zemialkowski was within her rights to move with Kali. Because she and Athikorala were never married, he said in an email, Zemialkowski "is the only one invested with the authority to decide" where the child will live. Grullon said international law is on his client's side.
Zemialkowski was never obligated to take part in the custody proceedings Athukorala initiated in Family Court in 2008, Grullon said. In fact, he advised her not to return to the U.S. for a trial in the matter last year.
Grullon said not only is Perlman's order invalid, but the kidnapping indictment is, too.

A Hampshire Superior Court judge issued a warrant for Zemialkowski's arrest in November, on the same day she was indicted.

So far the warrant hasn't been executed. Assistant Northwestern District Attorney Jane Mulqueen said the two countries' disagreement over the treaty has left the kidnapping case at an impasse.

Zemialkowski said fighting Athukorala's custody suit and pursuing legal actions of her own has exhausted her family's financial resources. The process has taken an emotional toll as well, she said. "She has lost the peace and tranquility she needed to be in control of her life," Grullon said.
Relationship soured

Zemialkowski was born in Puerto Rico to an American father and a Dominican mother. She grew up in the Dominican Republic and now works there as a veterinarian.

Athukorala was born in Sri Lanka and grew up in the African nation of Lesotho, where his mother worked at the time. After moving to the U.S. in 1988, he attended Amherst Regional High School and the University of Massachusetts, and now works as a computer programmer in Springfield.
The two met in 2006 through an Internet dating service. Athukorala traveled several times to Florida, where Zemialkowski was working at a Dominican-owned veterinary clinic. They'd known each other only a few months when Zemialkowski became pregnant.

While they hadn't intended to have a child, Athukorala said they eventually decided to move in together in his newly built home at 1130 Federal St. in Belchertown, where his mother also lived, and raise the baby together.
Athukorala, a computer programmer, said the plan was for him to work and support the family while Zemialkowski worked on a degree in veterinary medicine.

According to court records, Zemialkowski and Athukorala lived together in Florida starting in November 2006.

In August 2007, they moved to Belchertown, and Kali was born later that month at Cooley Dickinson Hospital in Northampton.

Zemialkowski said she felt very isolated in Belchertown. "I didn't know a single soul," she said. To make matters worse, she said, there was no furniture in the house and she had to sleep on the floor.

Athukorala says this isn't true, and showed photographs to a Gazette reporter showing the house fully furnished, with Kali and Zemialkowski in the shots.

Zemialkowski took Kali to the Dominican Republic for the first time the following December. Zemialkowski said that, by that time, she and Athukorala had ended their relationship and it was understood that she and Kali would stay indefinitely.

Athukorala claims they hadn't broken up, and that Zemialkowski told him she planned to take Kali for only two weeks to visit her parents in Santo Domingo. "I'm trying to figure out what happened," Athukorala said. "There was no friction between us. Everything seemed to be going fine."
Court records indicate Athukorala agreed to let Zemialkowski keep Kali in the Dominican Republic for another two months.

But when that deadline passed and they still hadn't come back, Athukorala sought a court order for the girl's return.

"I didn't really know if I should file a legal case," Athukorala said. "I didn't want to ruin our relationship. It took a while to realize some games were being played and I was being manipulated emotionally."

Athukorala said so far he's spent more than $100,000 trying to get Kali back. Similar cases to his have run up bills as high as $350,000, he said.
Zemialkowski made a number of trips back to the U.S. for Family Court hearings before Grullon advised her to stop.

Perlman at one point ordered Zemialkowski to post a $25,000 bond to ensure her continued involvement in the proceedings.

The Dominican government took the position that this requirement also violated the international abduction treaty.

Zemialkowski said she was stuck in the U.S. for months while her parents scraped together the money, taking out a second mortgage on their home.

Now, since she never went back to Family Court, they're out the money.
Zemialkowski said she is suspicious of Athukorala's motives about seeking the return of Kali. "I think it's out of spite. I don't believe it has anything to do with the best interests of the child," she said.

Athukorala has made a few visits to his daughter the Dominican Republic. One trip coincided with Kali's birthday, he said, and so he threw her a party in his hotel room.

Zemialkowski claims Athukorala shoved her during his last visit in December 2008 - an allegation Athukorala denies, saying Zemialkowski concocted the story to block him from visiting Kali.

The incident led to a restraining order and criminal charges against Athukorala, Grullon said, but he left the country before the matter was ever taken up in court.

Meanwhile, according to Grullon, a Dominican court has ordered Athukorala to pay child support, but he has ignored the order.
Zemialkowski says Kali is oblivious to her parents' dispute.

"She's very bubbly, very happy," Zemialkowski said when asked to describe her daughter. "She's quite a joker. She's talking like a little parrot."

Athukorala said the last time Kali visited him in Belchertown, in February 2009, she scribbled on the carpet with a magic marker and left handprint on his television screen. Both marks are a reminder of his daughter, Athukorala said, and so he hasn't cleaned them up.
Even if he does win Kali back, Athukorala said he and his daughter will still have a hard road ahead of them.

"If we are reunited again, it's going to take a long time going through counseling to re-establish a bond," Athukorala said.

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