A legal precedent for Elian staying?

Case involves a child who stayed in the US even though her Mexican mother wanted her back.

A little-known case involving the alleged kidnapping of a Mexican girl could help determine whether young Elian Gonzalez will remain in Miami or return to his father in Cuba.

The saga of Elian Gonzalez has attracted worldwide attention and sparked an international custody battle between the six-year-old boy's father in Cuba and his great-uncle and cousin who want to raise him in Miami.

Experts in family law say that under US and international legal precedents, Elian's father has a clear right to have his son returned to him in Cuba.

But lawyers for Elian's great-uncle are hoping a 1980 case involving a custody dispute over a six-year-old girl from Mexico will help undermine Elian's father's rights and virtually ensure that Elian remains in the United States.

Attorney General Janet Reno has decided Elian should be returned to his father, but Miami lawyers have asked a federal judge to order the government to conduct a series of hearings into whether Elian would be better off in the US. A ruling is expected soon.

In the case of the Mexican girl, a federal appeals court reversed a decision in favor of the girl's mother and ruled that, in cases involving international custody disputes, a guardian should be appointed to determine the child's best interests. Those interests are to be determined regardless of a parent's interests, the decision says.

In addition, the Mexican girl's case illustrates how a parent's claim to exert control over his or her child can be substantially diminished the longer a child remains outside the custody and control of that parent.

Elian's mother and step-father died in an attempt to flee Cuba across the Florida Straits. Elian survived and has been living with relatives in Miami since his rescue on Thanksgiving Day.

Time is on their side

The fact that Elian has spent four months in Miami and reportedly has already bonded with his 21-year-old cousin as a surrogate-mother, legal analysts say, could provide a judge with grounds to decide that Elian should remain in the US. Elian's father wants the boy to be returned to Cuba.

"The family in Miami is using the passage of time to transform [Elian's case] into a de facto adoption," says David Abraham, an immigration-law expert and law professor at the University of Miami. "The strategy is to delay and create a new status quo in which ripping Elian away from [his relatives in Miami] starts to look almost as inhumane as ripping him away from [his father in Cuba]."

In the case of the Mexican girl, an American couple agreed to pay $500 for the child and raise her as their own.

But after they reneged on the payment, the mother wanted her daughter back and claimed the child had been kidnapped.

It took the mother six years to track down the little girl and litigate her case. By then, the girl had been raised virtually all her life as an American child with American parents.

A federal judge in Miami ordered the girl returned to her natural mother in Mexico, but the appeals court reversed that decision and said a guardian must first be appointed to determine the girl's best interests.

Ted Klein, a Miami lawyer, was appointed the girl's guardian in the case.

"I determined that the child had been living with the American parents for six years, and she had bonded with the American couple and had no relationship whatsoever with the Mexican mother," Mr. Klein says.

A psychological evaluation determined that the child's return to Mexico would be devastating, he says. He decided the child's best interest was to remain with the American couple.

"Children are like young plants. They cannot be transplanted over and over again," says Professor Abraham. "That is why US law and international agreements all insist on treating these matters urgently and concluding them as rapidly as possible."

One irony in the Elian case is that rapid resolution of the dispute is truly in the best interest of the child, but neither lawyers for the Miami relatives nor the US government have thus far taken steps to resolve the case quickly.

Far-from-speedy justice

Indeed, after nearly four months, a federal judge has yet to decide whether the boy is even entitled to an asylum hearing.

US District Judge K. Michael Moore is expected to rule on the issue at any time, but even if he finds that Elian's Miami relatives have no standing to raise such issues and orders the boy immediately returned to his father, that decision would be subject to a potentially lengthy appeals process and further delay.

"Time ensures a certain result," says Martin Guggenheim, a law professor and family-law expert at New York University. "They certainly can win by delaying final action [in Elian's case]," Mr. Guggenheim says of lawyers seeking to keep Elian in the US. "That is the game they are playing."

The issue of delay was discussed at the end of a recent federal court hearing in the Elian case conducted by Judge Moore.

Deputy Solicitor General Edwin Kneedler said that if the judge granted the request for an asylum hearing for Elian, it could trigger a time-consuming legal ordeal. And that, he said, would result in "an extended period of absence between a parent and a child that could cause irreparable damage to that relationship."

In the meantime, lawyers for the Miami family say they are prepared to wage all-out legal warfare in both state and federal court on issues ranging from asylum to custody. Legal analysts say Elian's case could be tied up in the courts for years.

The lawyers are even prepared to bring a psychologist to court to testify about Elian's need for stability and his desire to remain with his cousin, Marisleysis Gonzalez.

In tearful testimony to a US Senate committee last month, Ms. Gonzalez said Elian's return to Cuba would cause a major disruption at a difficult time in his life.

"Above all," she said, "what Elian needs is stability, certainty about his life and about his future."

But if one thing is certain, legal analysts say, as long as Elian's future is in the hands of judges and lawyers, stability will be all but impossible for the little boy.

(c) Copyright 2000. The Christian Science Publishing Society