Case of Cuban boy may test US custody law

Young Cuban boy plucked from the sea off a Florida beach has triggered an international tug-of-war that is aggravating US-Cuba relations and may ultimately test the limits of America's child custody laws.

The dispute over Elian Gonzalez, who played baseball on his sixth birthday Dec. 6 while nations battled over his future, could be a landmark in the development of children's rights. It could also be a major setback to the rights of parents to decide where, how, and with whom their children are brought up.

At its most basic level, the case raises the question of who should decide a child's future: the parents or government officials and judges.

"Because of the politics of the case, it could break new ground," says Bernard Perlmutter, director of the Children and Youth Law Clinic at the University of Miami. But "I don't know where in the end the chips are going to fall."

Elian Gonzalez was found floating in an inner tube off Fort Lauderdale, Fla., Nov. 25.

His mother and stepfather were among 11 Cuban refugees who drowned when their boat capsized trying to reach the US.

Since his rescue, the boy has lived with his father's uncle and aunt in Miami. But Elian's father, who is still in Cuba, wants his son back. He has the support of Cuban President Fidel Castro.

It is a case that evokes strong emotions on both sides of the Florida Straits. Cuban exiles in Miami argue that Elian's mother gave her life in an attempt to win freedom and a bright future in America for her son. But Elian's father says the child was taken from Cuba without his permission and that "kidnapping" should not be rewarded by the US. He says his son's place is with immediate family members in Cuba, not distant relatives in Miami.

Experts in US child-custody law say it shouldn't matter that Elian would enjoy a wealthier lifestyle in Miami.

"A parent's rights always ... take precedence over anybody else's rights to have custody of the child," says Claudia Wright at the University of Florida Law School in Gainesville. "It would be a very uphill climb for other relatives to gain custody of the child over the objection of the father."

The case may break new legal ground if a Miami Family Court judge relies primarily on the wishes of Elian, who has reportedly said he wants to stay here. There are also reports that the boy told his father, by telephone, that he was coming home soon.

If a judge grants Elian's wish to stay in the US, it would set a major precedent that the rights of a six-year-old to determine his own future and upbringing may be superior to the rights of his father to make those decisions.

There is precedent in US law for such a decision. In 1980, a 12-year-old boy in Chicago refused to return to the Soviet Union with his parents. The boy was granted asylum pending the outcome of the case, which dragged on for five years. By the time the boy was 17, the court ruled that he was old enough to decide for himself where to live.

The Miami case has plunged US-Cuba relations to their lowest point in years. Mr. Castro entered the fray by demanding that Elian return to Cuba by Dec. 8 or the island nation would boycott coming negotiations in Washington over immigration issues. Large, government-sanctioned street demonstrations are being held in Cuba to protest the case.

The State Department counters that it does not respond to ultimatums.

In Miami, Elian has literally become a poster child for the anti-Castro movement. Cuban exiles are printing photographs of the boy, using his case to help publicize the plight of Cubans under Castro.

In addition to the family-law questions, Elian's case involves a 1995 US-Cuba agreement under which any Cuban refugees taken into US custody prior to reaching US soil must be denied asylum and returned to Cuba.

After Elian was rescued by sport fishermen, they turned him over to the US Coast Guard while still offshore. Cuban officials argue that under the 1995 accord Elian should be automatically returned to Cuba.

US officials say they granted Elian asylum because he was taken ashore for humanitarian medical treatment.

If the case goes to Family Court, it will touch on some of the most fundamental rights in American society. It would pit a parent's right to raise a child without government interference against the power of the government to intervene to protect what it views as the best interests of a child.

Experts in child-custody law say Elian's father should easily win a custody battle against his uncle and aunt, unless there is some history of abuse or abandonment by the father.

But they add that if the case is decided in Family Court here, where judges are elected rather than appointed, the politically charged atmosphere and intense public interest may influence a judge's decision.

"It is possible that if a family judge were to make an unpopular decision in this case ... it might create grounds to challenge the judge in the next election, which would be regrettable," says Mr. Perlmutter.

(c) Copyright 1999. The Christian Science Publishing Society