August 23, 2012
In January 2011 the two children of Robert Makielski where illegally taken to the Dominican Republic by their mother, Maria Rivera-Estevez. The mother removed the children from Virginia without the father’s authorization as required in a current custody order. The existing court order defined the U.S. as habitual residence for the children. On July 25, 2012 the Dominican Republic’s Court of Appeals upheld the trial court’s ruling denying the children be returned to their habitual residence.
Culpeper, Va. 7 August 2012 A Virginia father faces overwhelming odds to have his two children returned from the Dominican Republic. After using the “Hague Convention on Civil Aspects of International Child Abduction” process the Dominican Republic Court of Appeal denied the return of the children based on a grave risk exception. The Dominican Republic now has case law that will make difficult to return any abducted child to their habitual residence.
“Because of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse”
In February 2011, Mr. Makielski filed a Hague application (The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention) with US State Department in which he accrued considerable expenses to have all documents translated to Spanish. Although there was a pending divorce on the Culpeper circuit court docket, Maria Rivera had filed for divorce and custody in the Dominican Republic. In violation of Hague article 16 the Divorce was heard without Mr. Makielski’s knowledge. He had to retain counsel in the Dominican Republic to have the Dominican divorce dismissed.
For the Hague application, the first hearing took place in May 2011 where the judge ruled to allow the mother time to gather additional evidence. Contradictory to the Hague treaty, the Dominican Judge ordered the father’s physical presence in the D.R. court. Due to threats posted by parties related to Ms. Rivera, the father’s availability via online video conference, and his safety and security could not be guaranteed; he did not travel to the country. The judge refused to allow him to appear by video conference. Additionally, a representative from the US embassy was not permitted to attend the hearings. Two further hearings took place in June. The Dominican judge did not allow the parties or their attorneys to be present during the testimony of the daughter; only the Judge and the 2 Dominican psychologists were present. In July the hearings continued.
The father provided translated and apostilled documentation showing he had no pending charges, no criminal record and no sex offender record existed. On August 4, 2011, Consejo Nacional Para la Niñez y la Adolescencia (CONANI the Dominican Central Authority) and father’s Attorney presented closing arguments requesting the return of the children. On October 4, 2011, The Dominican court released its decision to deny the return of the children based on Article 13b of the Hague treaty. Article 13b states an application for return can be denied if there is a grave risk that a return would expose a child to physical or psychological harm or otherwise place the child in an intolerable situation. An Appeal was filed and heard on December 14, 2011 and July 17, 2012. On July 25, 2012 the Court of Appeals upheld the trial court’s ruling.
In April 2011 the U.S. embassy performed a Health and Welfare visit. The mother has refused to allow any subsequent visits. Since then the mother has prohibited any further visits with the children. The Dominican Republic Government has not allowed Mr. Makielski any contact with his children. He has not seen or heard from his children since January 18, 2011.
The children were located in the ”Ensache Ozama” neighborhood of Santo Domingo where they are now are exposed to an extremely diminished standard of living. Since then that have moved to another barrio close by in Santo Domingo Este. At the time of the removal, the daughter was enrolled in the public schools gifted student program. The World Economic Forum ranks the DR at 139 out of 147 for education. Compared to their home in the US, this neighborhood suffers from the social problems of high crime, lack of garbage collection, frequent blackouts and unclean water.
To learn more about this parental abduction, visit http://storify.com/guitarski/a-dominican-parental-child-a…
About the Hague Convention on Civil Aspects of International Child Abduction
The objects of the present Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
The Hague Conference has currently 72 Members including the United States. The Dominican Republic is not Member of The Hague but has ratified and acceded to the Hague Convention.
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