Immigration: Most countries, in dealing with child custody issues, acknowledge principles that favor the natural parent, experts say.
By Ricardo Alonso-Zaldivar, Times Staff Writer. Los Angeles Times. January 6, 2000
WASHINGTON--The decision to return Elian Gonzalez to his father in Cuba--as controversial as it is among Cuban Americans--is entirely in keeping with the standards of family law in most countries around the world.
Judged as a child custody issue rather than a political defection, the case of the Cuban 6-year-old revolves around widely accepted principles that favor the natural parent, numerous experts say.
"The merits of Cuba versus the merits of the United States are not what is of paramount concern to this child," said Nancy Hammer, director of the international division of the National Center for Missing and Exploited Children.
At the end of a century that saw refugee migrations on a previously unimaginable scale, the story of a small boy adrift on an inner tube captured the world's attention.
Elian was pulled from the sea on Thanksgiving morning by two Fort Lauderdale fishermen. Miami's Cuban American community, learning that his mother, Elizabet, had drowned on the risky passage, opened its heart and he was taken in by his father's uncle, who lives there. Strangers showered him
with gifts.
But back in Cuba, Juan Miguel Gonzalez, the father who had shared in the child's care even after being divorced from his mother, insisted on Elian's return. The case was pulled into the vortex of the tense relationship between the United States and Cuba.
But aside from the tragic circumstances in which Elian's mother died, the case was arguably unexceptional. As the world becomes a more connected place, global custody disputes are increasingly common. At any given time, there are about 1,000 active cases involving American children taken
overseas against a custodial parent's wishes, usually by the other parent. Indeed, the U.S. handling of the Gonzalez case was being closely followed abroad.
"I am in contact with family law attorneys throughout the world, and they would think 'shame, shame' if we didn't return this child--unless you could show that there was a monster waiting to eat him or something like that," said William Hilton, a Santa Clara lawyer with an
extensive international custody practice.
The underlying dispute in many cases involving American children is not too dissimilar from the Gonzalez case, in which the father maintains that his former wife decided to take Elian to Miami without informing the family in Cuba.
An international family law convention establishes that a child taken without permission should be returned to his or her "habitual" country of residence unless a showing can be made in court that there is "grave risk" of physical or psychological harm. The United States
is a signatory to the convention, while Cuba is not. Still, governments that participate often apply its principles to countries that do not.
"United States and international law recognizes the unique relationship between parent and child, and family reunification has long been a cornerstone of both American immigration law and practice," said Doris Meissner, commissioner of the Immigration and Naturalization Service,
in announcing her decision.
As highly political as the Gonzalez case had become--because of Cuban President Fidel Castro in Havana as well as his foes in Miami--some Cuban Americans agreed that family ties, not the political divide, should determine the outcome.
"Even under the worst of circumstances, a child is better off with the parents," said Maria de los Angeles Torres, a political science professor at DePaul University in Chicago. When she was 6 years old in the early 1960s, Torres' parents in Cuba put her on a plane to the United
States to escape the Castro regime. She was part of Operation Peter Pan, a program that brought in about 14,000 Cuban children during the Cold War.
Torres said she was deeply disturbed by how much politics had become a part of the Gonzalez case. "The debate was really not about the child's needs," she said. "Unless there is a clear case of abuse, the father should have custody. . . . Clearly the mother made a reckless
decision to put a child on a rickety boat."
In a recent interview, the now-retired Roman Catholic priest who ran the 1960s airlift for Cuban children voiced concerns about keeping Elian from his father.
"Parental rights can only be overcome by serious grounds," said Msgr. Bryan Walsh, who still lives in Miami. "You are dealing with a very fundamental human right that antecedes all laws."
INS Commissioner Meissner said that the decision was made solely on the facts of the case. INS officials interviewed the father in Cuba and determined that he had a close relationship with Elian. Juan Gonzalez and other relatives in Cuba provided documents and photographs to back his
claims.
However, independent experts said that immigration and State Department officials also considered the possible international fallout from a decision to keep Elian Gonzalez in Miami.
Lawyers said that it is not unusual for foreign parents who have taken children from an estranged American spouse to contend in their local courts that returning children to the United States would expose children to street violence and moral depredation.
Copyright 2000 Los Angeles Times |