Court will decide more than just Elian's future

There's been a pause in the whirlwind of rancor and public outcry surrounding Elian Gonzalez. The daily media stakeouts in front of his great-uncle's Little Havana home are on hold. Also quiet is the crush of Cuban exiles chanting for Elian's permanent residence in Miami, despite his father's requests that the boy be returned to him in Cuba.

That pause is set to end today, when a small army of Miami lawyers march into federal court to ask Chief US District Judge Edward Davis to give a six-year-old Cuban boy his day in a US court.

They argue that Elian and his great-uncle are entitled to a full court hearing to determine whether it is in the boy's best interest to return to Cuba or remain in Miami.

The legal issues are sharply drawn. Emotions couldn't be higher. And the stakes extend well beyond the future of a little boy from Cuba. The case could sour US-Cuban relations for years and set an international legal precedent that would influence how American parents and their American children are treated in foreign courts deciding similar cases.

"What the United States does in Elian's case may have implications far beyond this case," writes Dexter Lee, an assistant US attorney, in a brief he filed for the government.

Government lawyers claim that Attorney General Janet Reno and immigration officials have exclusive jurisdiction to decide the issue. Officials already determined that Elian's future should be resolved by his father, who says the boy should be returned home. They add that the Miami relatives lack the legal standing to file a lawsuit on Elian's behalf in the face of his father's objections.

Also, two recent disclosures have added more kindling to the emotional dispute. Press reports in Miami revealed Lazaro Gonzalez, the great-uncle, has twice been convicted of drunk-driving charges in the past, raising questions about his suitability to win custody of the boy.

On the other side, The Miami Herald reported Sunday that one of Elian's grandmothers suggested during a recent visit to Miami that she was considering defecting. There were also suggestions that Elian's father may have been abusive to Elian's mother, and that he knew in advance the boy and his mother were going to Miami. The father has told US immigration officials he knew nothing of the late November attempt by Elian, his mother, and 12 other Cubans to flee to Miami. Their small boat sank, and Elian's mother and 10 others died at sea. The young boy was rescued clinging to an inflated inner tub, after drifting for 2-1/2 days.

Lawyers for the great-uncle say Elian has a right under the US Constitution to a full hearing on whether he should be granted asylum in the US. Government lawyers counter that illegal immigrants seeking entry to the US have no constitutional right to a full hearing to argue admission or asylum claims.

In addition, the government says neither Elian, nor his great-uncle, has the legal authority to even seek asylum over the objection of Elian's father. This is a position family-law experts have emphasized throughout the international tug of war over the boy. They say that unless Elian's father is found to be abusive or unfit, relatives, judges, and even Elian himself all lack the legal authority under US law to overrule a parent's wishes.

Lawyers for the great-uncle argue that Elian's father, Juan Miguel Gonzalez, has no legal authority to challenge his Miami relatives, who are seeking custody of the child because of the father's refusal to travel to the US. In addition, they argue that the father is in no position to even challenge an attempt by his six-year-old son to seek US asylum and perhaps live the rest of his life in Miami.

"The only due-process right that a parent has is to be notified of the substantive hearing so he may be included; he is not afforded the right to unilaterally withdraw his child's right to petition [for asylum]," says Miami attorney Linda Osberg Braun in a legal brief filed on behalf of Elian and his great-uncle.

The US government disputes this contention. Its lawyers argue that millions of foreign visitors entered the US last year, many of them with children, and it would be impossible to administer a system that granted children of any age a constitutional right to seek asylum independent of their parents' wishes.

"Elian is so young he cannot comprehend the significance of an asylum application. Someone else, therefore, must decide and speak for him," Mr. Lee writes. "If anyone should represent Elian, it is his father, and his father has asked that Elian return home."

The US Supreme Court has long recognized parental rights as fundamental rights. "It disserves the public interest to undermine the principle that parents may decide what is best for their children," the brief says.

Fidel Castro has labeled Elian's situation in Miami a form of kidnapping. But anti-Castro Cubans say the oppressive nature of the Cuban government makes it impossible for Elian's father to express his true wishes. And they say Elian's mother gave her life so her son could live in freedom, and every effort should be made to honor her wish.

US immigration officials who twice interviewed Elian's father in Cuba say they believe he was speaking honestly when he said he wants Elian returned. "Elian is my life," his father told them. "He is my first son. Wherever I went, he went with me."

(c) Copyright 2000. The Christian Science Publishing Society

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