By Bruce Boyer. Chicago Tribune, January 12, 2000
'I do solemnly swear to uphold the law." Such is the oath taken by the elite few chosen to assume the legal profession's highest responsibilities. Most judges take this oath seriously. One judge in Miami--Rosa Rodriguez--apparently does not.
The statute applied by Judge Rodriquez to wrest temporary custody of Elian Gonzalez from his father in Cuba precludes anyone other than a child's brother, sister, grandparent, aunt or first cousin from even asking a family court for temporary custody of a child, over the objection of a fit
parent. None of Elian's Florida family fits this definition.
The doctrine embodied in this law is known to family lawyers as the doctrine of "standing" and it is central to the treatment of family rights in American law. The requirement of standing precludes casual interference with parent-child relationships by prohibiting individuals who have
anything less than the most compelling connections to someone else's child from forcing parents and children to defend their relationships in court. Standing limits the freedom of people who disapprove of a parent's religion, opinions or lifestyle choices from turning those differences into grounds
for taking away a child. No principle of law is more fundamental to a democratic society than the idea that differences must be tolerated. Standing guards against the most heinous kind of social engineering, and it protects children and parents alike.
Elian's Florida relatives may want their day in court but they simply have no legal right to it. And make no mistake: The so called "best interests" hearings usually aren't. Such hearings are typically intrusive, expensive and protracted. They drain parents' emotional and financial
resources. Children rarely gain anything of value when adults who can't work out their differences square off in court, each trying to denigrate the other's the abilities and commitment to the child caught in the middle of the storm.
If the standing laws weren't clear enough for Judge Rodriguez, it gets worse. When a parent objects, Florida law precludes the award of temporary custody to a relative, absent a showing by "clear and convincing evidence" that the parent is unfit to care for the child. This is the same
high standard required under the U.S. Constitution to permanently sever the legal relationship between a parent and a child. At most, Elian's extended family in Florida has questioned Fidel Castro's fitness to govern. They have offered not a single shred of evidence that even remotely justifies
permanently severing Elian's relationship with his father.
In other words, Judge Rodriquez had absolutely no conceivable legal basis for interfering with Gonzalez' right to speak for his son, and to bring Elian home. This kind of pandering to the electorate is one thing for elected politicians such as Congressmen Lincoln Diaz-Balart and Dan Burton, who
together conceived of the ridiculous notion that a 6-year-old boy could reasonably be forced to stay in the U.S. by a subpoena to testify at a phantom hearing. It is an entirely different matter when a judge who has sworn to uphold the law so blatantly disregards her oath.
If Judge Rodriguez' decision delays Elian's return home by even one day, it will be a day of shame for the legal profession.
Bruce Boyer is a supervisory attorney at the Children and Family Justice Center. |