Law clearly on father's side in Cuban boy case, experts say
By Laurie Asseo, Associated Press, 4/11/00
WASHINGTON -- The four-month dispute over Elian Gonzalez should be considered a "no-brainer" under U.S. laws, legal and immigration experts say.
"No way under our legal tradition the father should be deprived of his ability to care for his son," says Bernard Perlmutter, director of the University of Miami's Children and Youth Law Clinic. A decision in favor of the boy's Miami relatives would "wreak havoc with the whole concept of the parent-child relationship as a sacred one," he added.
Perlmutter and other legal observers say it's clear that federal courts -- and not state courts -- have the authority to decide the case.
"It's a very straightforward, simple immigration law matter," George Washington University law professor Alberto Benitez said Monday. "If Elian were Mexican or Haitian he probably would be back in Mexico or Haiti already. He's Cuban and that makes all the difference."
"Politics appears to be the only explanation why this wasn't settled a while ago," added Columbia University law professor Gerald Neuman.
Miami relatives of the 6-year-old boy are waging their battle to keep him in the United States on two fronts: a federal court appeal arguing that he should be allowed to seek asylum against his father's wishes, and a custody bid in state court.
A federal judge last month upheld Attorney General Janet Reno's decision to return Elian to Cuba to live with his father, Juan Miguel Gonzalez, who came to the United States last week and said he wants to take his son home.
U.S. District Judge K. Michael Moore said a provision of federal law allowing "any alien" to seek asylum was ambiguous and did not necessarily allow applications by children over parental objections.
And Florida Circuit Judge Jennifer D. Bailey asked the Miami family to explain why she should hear the state case, noting that state courts cannot interfere with federal matters such as immigration.
Elian's fate has been debated since he was found clinging to an inner tube off the Florida coast on Thanksgiving. His mother and 10 other Cubans drowned when their boat capsized during an attempt to reach the United States. Since then Elian has lived with his great-uncle, Lazaro Gonzalez, in Miami.
If the boy ultimately is returned to Cuba, "We're not returning Elian to Juan Miguel, we're returning him to Fidel Castro," attorney Linda Osberg-Braun, representing the Miami relatives, said in an interview Monday.
The relatives told a federal appeals court that since children as young as Elian are allowed to testify in serious criminal trials, the INS should take his desires into account in an asylum hearing instead of asserting that only his father can speak for him.
In state court, Osberg-Braun said, the family seeks a hearing on whether Juan Miguel Gonzalez is a fit parent, and whether "returning a global symbol to Cuba is abusive."
Because the boy is an alien, Perlmutter said, the case is a federal court matter under immigration law, not an issue for state family court. The Constitution invalidates state laws that conflict with federal laws.
"This is a no-brainer by all accounts," Perlmutter said.
Charles B. Keely, a Georgetown University professor of international migration, predicted courts would not buy the argument that living in communist Cuba is persecution enough to warrant keeping the boy here.
If an American child were in another country where officials said, '"Nobody should be sent to the U.S., it's a horrible place,' we'd say 'twaddle,"' Keely said.
State Department spokesman James Rubin said last week a failure to return Elian to Cuba would complicate U.S. efforts to have about 1,100 American children in other countries brought home.
Keely and Perlmutter said it might be a different matter if a child feared specific persecution in another country, such as female genital mutilation.
Perlmutter contended that even if the case were decided in family court, the result likely would be the same.
Under Florida law, custody can be taken away from a child's sole surviving parent only if the parent were proven unfit by "clear and convincing evidence." The child's best interests are considered when the dispute is between two parents -- not between a parent and a nonparent, Perlmutter said.
Parents' rights "are so far superior, so paramount to other relatives," Perlmutter said. "That is the heart of our family law."
Keely said that if the Miami relatives won custody of Elian, "it would open up enormous problems in this country for family law. You'd start expanding the basis for taking custody away from parents."
Elian's father, Juan Miguel Gonzalez, holds his son Hianny at the Cuban diplomat's residence in Bethesda, Md., April 11. (AP)
