By Jennifer Rosato. USA Today. May 15, 2000
One of the few good things to come out of the Elian Gonzalez tragedy is the public illumination of several perceived legal injustices: the differential treatment of Cubans and other aliens under U.S. immigration laws; the limited rights of young children; the cost of delayed legal actions
involving children; and the failure to recognize familial rights for those who bond with a child in their care.
Most of these issues should be dealt with out of the spotlight of Elian's case and only after careful, thoughtful deliberation. Congress can consider changes to the immigration laws and perhaps even U.S. policies toward Cuba. State legislatures can consider expediting custody cases. State courts
can consider the rights of ''psychological parents'' who bond with children in their care. If we rush to correct these perceived injustices now, we may reach decisions that appear to serve Elian's interests, but not our society's in the long run.
One issue, however, cannot await long-term resolution: The question soon to be decided by the 11th U.S. Circuit Court of Appeals.
The court seems to be considering a narrow question of immigration law: Can a 6-year-old child petition for asylum against the wishes of his parent? But this issue in fact has broad implications.
Parental decisions valued
Many laws appear to apply to any person, but in reality do not apply to children, including the right to enter binding contracts and the right to make health care decisions. In the few cases in which a court might consider children's opinions, they are asked about their own experiences, such as
whether they were abused. Even then, the testimony of younger children is looked upon with suspicion.
The law values the rights of parents to make decisions for their children, even if the children strongly disagree. This deference to parents is presumed to be better for children and for our society. Some exceptions have been made, but usually they are reserved for ''mature minors'' -- teenagers
considered cognitively and emotionally capable of making important decisions on their own. Elian certainly does not fall into this category.
If the appeals court were to decide that Elian can petition for asylum against his father's wishes, it might severely undermine the law governing parent-child relationships. Children would be given a chance to fight their parents in court and perhaps even demand their own attorneys.
Court followed law
Remember the case in the early 1990s of Gregory K., the 11-year-old who tried to ''divorce'' his mother so that he could be adopted? At that time, some expressed fear that if he succeeded, other children would try to divorce their parents for such trivial reasons as being forced to take out the
garbage. In the end, the court followed well-established law and concluded that children lacked the capacity to sue on their own behalf.
Giving Elian the right to pursue his asylum claim might have the unintended result of encouraging children even younger than Gregory K. to assert rights against their parents, a result our society has tried to avoid. More fundamentally, a decision in favor of Elian's right to pursue asylum would
upset societal expectations of who knows best for children: their parents.
We trust parents to make decisions just as important as asylum. When a child goes to the doctor, the parent decides the appropriate course of treatment; we don't need to ask the child whether he would prefer an alternative treatment or no treatment at all. When a parent decides to send a child
to a particular school, we don't need to ask the child whether he really wants to go. When a parent signs up a child for religious instruction, we don't need to ask the child whether he really needs it.
Does the appeals court want to create a precedent that might allow children to enter into contracts, demand their own lawyers and fight their parents in court -- even when they have no idea what is good for them? One of the judges may have been wondering just that when he noted at last
Thursday's hearing that Elian ''didn't even have the ability to sign his last name on that asylum application.''
The court's decision not only should reflect a rational reading of the immigration laws, but also the realities of children's capacities and existing parent-child relationships. The judges should resist the temptation to create Elian's law.
Jennifer Rosato is a Brooklyn Law School professor.
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