Political asylum for Soviet youth masks legal gains for parental rights. At 12, Walter Polovchak refused to return; US citizenship is ahead

From the start it was billed as a battle between the right to political freedom for a 12-year-old Soviet defector vs. the right of his parents to bring him up in the environment they prefer. The outcome looks like a clear victory for Walter Polovchak's political choice -- backed all the way by the United States Immigration and Naturalization Service (INS). But it masks some important legal gains made for parental rights which are sure to alter the course of any similar cases in the future.

``It could never happen in the same manner again,'' insists Harvey Grossman of the American Civil Liberties Union (ACLU), which has been representing the Polovchak parents.

The tangled mix of custody and asylum issues in the Polovchak case found its way into no less than six lawsuits filed since 1980.

But it is more a tribute to procedural delays than to actual legal findings that Walter Polovchak is now well on the way toward becoming an American citizen.

The Ukrainian youth, a Chicago high school senior, turned 18 a few days ago. He has already formally filed his application for US citizenship. That act symbolically sealed the choice he made at 12 when he ran away from his parents rather than return with them to the Soviet Union, after a seven-month stay in this city.

His public birthday celebration -- launched last week in California with an appearance on Paramount Television's ``America'' show -- continues this week with a party on Oct. 8 in Washington, D.C., hosted by the Freedom Federation and Liberty Institute.

Walter and his lawyer, Julian Kulas, have long maintained that one does not have to be a certain age to appreciate the importance of freedom and that Walter would be likely to face persecution if he returned home.

Mr. Kulas held that the right of asylum should take precedence over the custody issue. Both the Reagan administration and, for a time, both federal and state courts seemed to agree with him. Walter was made a ward of the state temporarily, and within a year was granted both asylum and permanent residency status.

But Illinois courts soon reversed their custody ruling, saying the parents should not have been deprived of that right. The INS then promptly issued a departure-control order. This order was issued to prevent anyone from taking Walter out of the country against his own will.

The ACLU challenged both the INS order and the asylum ruling on procedural grounds.

Federal court decisions since then have largely agreed that the parents were unfairly denied a due-process right to be notified of and participate in hearings before such orders are issued. The most recent federal appeals-court ruling last month, for instance, said the parents had been treated ``cavalierly'' by the INS.

Mr. Grossman contends that the ACLU was never trying to force Walter's return to the Soviet Union. Neither was it suggesting that a child could not apply for asylum over the objections of his parents.

``All we're saying is that when asylum is used as a basis for interfering with custody . . . the parents must have a right to participate in the proceedings.''

``Our State and Immigration Departments will very easily and willingly grant asylum to Soviet children. They will have no problem doing that. There's a necessity for parental involvement so third parties can't manipulate a child through this kind of process. What we've been trying to do is take government out of the family . . . and straighten out the law,'' Grossman says.