Whatever case's route, father wins, experts say

Fla. family law, immigration rules favor parental custody

April 01, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- If the Elian Gonzalez case becomes a custody dispute in Florida family court or runs its course as an immigration case in the federal courts, the result would be the same: Either way, legal experts say, the father will likely get the boy.

As a result, it would be up to Juan Miguel Gonzalez, the Cuban boy's father, to decide whether 6-year-old Elian stays in this country or goes back to Cuba. The father's lawyer said yesterday they eventually will go to Cuba together.

"The father certainly ought to win under both immigration law and custody law -- take your choice," says David Abraham, a law professor at the University of Miami. Abraham makes it clear that he thinks Juan Miguel Gonzalez will win, no matter which court has the final decision.

The basic right under American law of parents to raise their children, it appears, will control the outcome.

If the father comes to the United States, and the Justice Department hands over the boy to him, nothing in the law apparently would prevent the father from going right back to Cuba with Elian, probably scuttling any court proceeding. The father's attorney, Gregory Craig, has said Juan Miguel Gonzalez would wait in the United States for the outcome of the case.

Getting the boy to the father is one of the most sensitive issues right now; the Miami relatives said yesterday they would not turn over Elian to his father -- a complicating change in position.

Everyone involved appears to assume that the courts will make the final decision. That has been the view of the boy's Miami relatives and of the Justice Department. Two of the nation's most visible politicians -- presidential candidates George W. Bush and Al Gore -- want the courts to decide; both prefer state court in Florida.

Since the boy's fate also involves U.S.-Cuba relations, it is possible that a final solution could be reached outside the courts, though at the moment that seems unlikely.

The fact that the boy's fate is immersed in domestic politics and international diplomacy, and is a high priority item on a lot of political agendas, may be obscuring the reality of what is most likely to happen in the end.

The simplest reality, according to legal analysts, is that Elian's status probably will depend ultimately on law, not politics or diplomacy. And the laws -- both those that control immigration cases in federal courts and those that control custody of children in Florida courts -- strongly favor the rights of a child's natural parents, like Elian's father.

Even if Congress were to step in and pass a law to give the boy U.S. citizenship or permanent U.S. residence, that would not take the question of his legal fate away from the courts ultimately, according to another legal analyst, Bernard P. Perlmutter.

He is director of the Children and Youth Law Clinic at the University of Miami Law School and helped draft some of Florida's child custody laws -- the laws that ultimately could determine who becomes Elian's caretaker.

The Constitution probably is on the side of Juan Miguel Gonzalez in this fight. "There is a strong and weighty presumption" in favor of natural parents' right to their children, and that comes out of decades of constitutional rulings by the Supreme Court, Perlmutter said.

In fact, the Supreme Court may soon reinforce the constitutional right of parents to their children. It is reviewing a Washington state law that lets grandparents get a court order allowing visitation with a child, against the parents' wishes. The court reacted negatively to that law in a hearing.

Thus, even if Elian's case should ultimately reach the Supreme Court, the father's rights could prevail there, too.

For now, the case is awaiting a May 11 hearing before the 11th U.S. Circuit Court of Appeals, based in Atlanta. That court is dealing with Elian's status as a matter of federal immigration law.

That is likely to play out before any state custody issue could arise. A state judge temporarily tried to intervene to keep Elian in this country, but that effort is now on hold, and the immigration case is not affected by it.

Abraham, the Miami professor who specializes in immigration law, says the issue before the appeals court is a simple one: Did the agency that Congress created to interpret the law in cases like Elian's have the authority to decide to let the father speak for the child?

That agency, the Immigration and Naturalization Service, concluded in January that Elian's father had to speak for him, because a 6-year-old child cannot make legal decisions. The father says he wants the boy back, and in Cuba. The INS, with approval from Attorney General Janet Reno, is prepared to bring that about.

Abraham and other immigration experts expect the appeals court to agree with a Miami federal judge that the INS legally is following the father's wishes.

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