Elian Gonzalez's future is in the hands of American courts

A federal issue of asylum, or a dispute in state court over custody of a child?

January 30, 2000

WASHINGTON -- The political side of Washington is wrapped up in the controversy over Elian Gonzalez, the motherless 6-year-old Cuban boy living temporarily in the United States. But his future is expected to be resolved as a legal matter by an American court. Dueling lawsuits over his plight have raised many questions. Sun staff writer Lyle Denniston sorts out some of the answers.

Why is everybody fighting over Elian?

Behind the legal fight are two very different views of Elian's situation.

For the Cuban emigre community in this country, Elian is a living -- and highly appealing -- symbol of the flight to freedom from Fidel Castro's Cuba. If Elian is not granted asylum as a political refugee and allowed to stay in the United States, the Cuban-American community would suffer a serious setback.

It also fears for Elian's welfare in Cuba.

But to the U.S. government, Elian's situation poses a serious test of the American immigration policy that supports family unity. If his closest relative -- his father in Cuba -- cannot exercise the usual parental right to decide a child's legal fate, officials foresee a policy defeat that would pose a threat to U.S. children abroad.

For example: If a U.S. parent took a child to an Asian nation to visit relatives, and the parent died, U.S. policy would demand that the child be returned to the parent who stayed in the United States. Elian's case, the government believes, could affect that policy.

Why isn't this a diplomatic issue, to be decided between the United States and Cuba?

Even if the two governments agreed on what should be done about the boy, his future is controlled by American federal law, and perhaps by state law, too. Those laws treat him not as a diplomatic prize, but as a dependent child unable to make decisions for himself and requiring someone with authority to sort out his rights.

The dispute is often referred to as a fight over custody of Elian. Is that what it is?

No, at least not yet. For now, it is only an immigration issue. It will remain an immigration issue unless one of two things happens: Elian becomes a U.S. citizen -- something Congress could confer -- or the Justice Department backs down or loses in court on its argument that Elian's case is controlled solely by immigration law. If either happens, the dispute becomes a contest over custody.

Custody is a legal matter; disputes usually arise when there is more than one person claiming rights to raise a child. Who gets custody is decided under state law -- in this case, the laws of Florida. Federal immigration officials have no power to decide child custody issues.

A custody fight will not arise if Florida's laws are blocked on the constitutional premise that they interfere with federal immigration law.

What does that mean -- "interfere with federal immigration law" -- and why is it a constitutional matter?

Under the Constitution, U.S. laws are superior to state laws on the same subject. State laws must yield if they cannot be enforced without disrupting federal law. Immigration law thus would trump a conflicting state child custody law.

Doesn't Elian's great-uncle in Miami already have custody of him?

Not in a legally binding way. After Elian arrived in this country, picked up off the Florida coast by two fishermen, federal officials allowed his great-uncle to take care of him until his immigration status could be sorted out. That arrangement does not amount to custody. His care by the great-uncle is subject to conditions imposed by immigration officials -- as in the order last week to take the boy for a visit in Miami with his two Cuban grandmothers.

A state judge in Miami has given the great-uncle temporary legal custody. But it is far from clear that the judge had authority to do so. And it is not clear that the judge's order will be allowed to stand.

Doesn't the judge's order mean that a custody issue has already been raised, at least in Florida state court?

Factually speaking, yes. But the U.S. government is treating that case as if it did not exist and is asking a federal court to rule that federal law, not state law, controls Elian's fate. If the government wins that argument in court, there will be nothing for the state judge to decide. Her temporary order would lapse.

What else are the Miami relatives trying to do to keep Elian in the United States?

After Attorney General Janet Reno ruled that the boy's Cuban father is entitled to have the boy sent back to Cuba and can block any attempt to classify Elian as a political refugee from Cuba, the Miami relatives sued in federal court.

Their lawsuit seeks to force the government to keep Elian in the country and to rule on claims that the boy must be classified as a political refugee who can remain in the United States. The Justice Department claims that the federal courts have no power to second-guess Reno's decision.

If Congress gave Elian U.S. citizenship, what effect would that have on the legal dispute?

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