If presidential candidates Al Gore and George W. Bush agree on one thing in south Florida this year, it is that Elian Gonzalez's future should be determined by a judge in a Miami family court.
They're not the only ones. Both US Senators from Florida, many members of Congress, and the vast majority of the Cuban-American community all say that the six-year-old boy is entitled to have his day in court before a family judge.
But will he?
Not if Family Court Judge Jennifer Bailey follows the law, legal experts say.
"The issue boils down to: Are we going to follow the law, or are we not going to follow the law, because we feel there is something more important at work here," says Claudia Wright, director of the juvenile-law program at the University of Florida in Gainesville. "I'm glad I'm not the judge who has to decide that."
That stark legal assessment comes as Justice Department officials are attempting to iron out the final details of what they hope will be the peaceful reunification of the boy with his father, perhaps as early as this week. If that happens, the family-court action would be rendered moot.
In the meantime, lawyers for Elian's Miami relatives are undertaking a last-ditch effort to have an opportunity to present their case in family court, where psychologists would likely be able to testify that Elian might face irreparable emotional harm if he is returned to Cuba with his father.
"The child doesn't want to go back to Cuba - he said so," says Ninoska Perez of the Cuban American National Foundation.
Who wants what
The idea of trying the case in a Miami family court is a solution favored by those who want Elian to stay in the US.
They say it would allow a judge who specializes in resolving family disputes to decide the custody battle by taking into account the "best interests of the child."
But critics of this approach say it is a blatant attempt to get the issue before an elected judge, who will face intense political pressure to rule in favor of the Miami relatives. Moreover, legal experts say, the "best interests of the child" legal standard applies under US law only to cases that involve two parents fighting for custody of their child. In a legal battle between a father and a great-uncle, they say, the father's right to raise his son trumps any claim by the great-uncle.
To grant Elian's Miami relatives a full hearing in family court - much less full custody - a family-court judge would have to ignore a long line of clear legal precedents, say legal experts.
"If it is looked at dispassionately, applying the law to the facts, I don't think there is any reason to give [Elian's Miami relatives] hope that they could succeed any better in family court than they did in federal court [where they lost]," says Bernard Perlmutter, director of the Children and Youth Law Clinic at the University of Miami.
Ms. Wright of the juvenile-law program agrees. "It seems pretty clear that this is not a family-law case, this is an immigration case and the federal government is in charge of immigration," she says. "Even if it were a family-law case, the law is abundantly clear that the father gets the [child]."
Last month, a federal judge ruled that Attorney General Janet Reno has the broad discretion to decide that Elian's father - rather than his great-uncle -has a parental right to determine Elian's future. Lawyers for the great-uncle are appealing that decision, and a hearing is set for May 11 in federal appeals court.
Despite this action, some 15,000 Cuban-Americans held a rally Monday night in the Miami neighborhood of Little Havana, demanding that Elian receive a hearing in family court.
Both major presidential candidates say their insistence on a family-court hearing is based on basic due process and fundamental fairness. Legal experts counter that the positions of Messrs. Bush and Gore are based, at least in part, on mischaracterizations of family law.
But while taking Elian's case to family court looks like a sure loser in legal terms, advocating that an elected judge - rather than Elian's Cuban father - should determine the child's future could win many votes in Little Havana in November, political observers say.
Some analysts say the family-court push is making it much more difficult - and perhaps impossible - for the father and his Miami relatives to get together and agree on a common solution that is least disruptive to Elian.
Charges against the father
Instead, lawyers for the Miami relatives are seeking to bolster their own case by directly attacking the father's credibility, alleging that Juan Miguel Gonzalez is an abusive father who is unfit to be a parent. It is a tactic that must be painful for Elian, analysts say.
"Children always know what is going on," says Rita Simon, a professor at American University in Washington, and a specialist in international child custody.
Supporters of the father, including Ms. Reno, say Mr. Gonzalez has a five-year track record as an involved and loving parent. Critics of the father say he has been abusive to his son during recent telephone calls, and that Elian is fearful of him.
"Mudslinging and slander is the name of the game," says Perlmutter. "It is a desperate measure by desperate people who know they don't have a leg to stand on in federal court and who know they are on tenuous ground in family court."
(c) Copyright 2000. The Christian Science Publishing Society