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Uncertain Future for Elian Gonzalez

January 13, 2000 at 12:00 AM EDT


RAY SUAREZ: Briefly this week, the custody fight over six-year-old Elian Gonzalez moved from the streets of Miami and Havana to the courts. On Monday, a Florida state judge issued a ruling aimed at postponing last week’s decision of the US Immigration and Naturalization service that Gonzalez be reunited with his father in Cuba.

Judge Rosa Rodriguez set March 6 as a hearing date on the future of the boy. He’s been living with relatives in Miami since his rescue last November. The judge’s ruling received an ecstatic welcome among Cuban Americans in Miami who hoped it would thwart efforts by the Immigration and Naturalization service to send the boy back to Cuba.

But these demonstrations took place before it was revealed that an adviser to the boy’s family, Armando Gutierrez, and his wife, were paid nearly $70,000 for campaign services for the judge in 1998. Today, at her weekly news briefing, US Attorney General Janet Reno repeated her contention that the custody issue has to be resolved in federal, not state courts, and again backed the INS decision that Juan Gonzalez can alone determine where Elian lives.

JANET RENO: I think the process that was used by INS is a fair, good process. We are just trying to make sure that people understand that what is at issue is a father who wants his son home, and grandparents who want their grandson… grandson home. And these are bonds that should be honored.

REPORTER: Folks in Miami, though, of course, are saying that they don’t intend to address an immigration issue, they want to look at the custody issue. And of course, they say that is a province of the state court. Would… Why doesn’t the custody issue come first?

JANET RENO: The issue at stake here for the federal government is US Immigration law, and that’s governed by the federal court processes and federal law.

REPORTER: Just to follow it up, is custody here irrelevant at this point in the proceeding, when the… Given the immigration status of this boy?

JANET RENO: The custody circumstances are irrelevant to the federal process by which the federal law must determine who can speak for the boy in making immigration decisions.

REPORTER: Do you think people are setting a good example for this little boy?

JANET RENO: I think it’s important that all of us act with the best of goodwill, and act like we would want others to act around us, and act like, if you had a six- year-old boy, how you’d like adults to act around him.

REPORTER: I must say, I mean, we’ve talked about a lot of sensitive issues, and I don’t think I’ve seen you as agitated as you are about this little boy. I mean, do you think people are acting with goodwill, or is this just a political game?

JANET RENO: I don’t ascribe bad motives to people. I know a lot of the people involved. I know they feel very, very deeply. I just think it’s time for all of us to come together and say, “let us solve the case and let us make the decision.” And what INS has said is that for immigration purposes in federal law, the father should speak for the boy.

REPORTER: Do you have an understanding of what the boy himself wants to do, whether he wants to stay or whether he wants to go? And is that relevant in this case, what he wants?

JANET RENO: I think a six-year-old boy… Can you remember when you were six?


JANET RENO: There were some days I wanted to run away from home, and there were other days I wanted my mommy so bad I couldn’t stand it. And just remember what it was like when you were six, or try to, and I think you will understand what the range of emotions of a child are. And I think the law has indicated, and it’s certainly, I think, the experience of most people, that six years old is too young to speak for themselves.

RAY SUAREZ: Reno said she hopes a decision about the boy’s future can be worked out with his Cuban and American families.

For more on the legal fight, we turn to Jose Garcia-Pedrosa, a lawyer for Elian Gonzalez; and Bruce Boyer, supervisory attorney for Northwestern University’s school of law, children, and family justice center. Mr. Garcia-Pedrosa how did this end up in a Florida family court?

JOSE GARCIA-PEDROSA: Well, it ended up in a Florida family court because the immigration service decided on January the 5th, that no one could speak for the boy, except the father in Cuba on US Immigration matters. We went to the state court for a simple reason which I think has been frankly misrepresented. We didn’t go there to administer federal immigration laws; that would have been improper. We went there to seek a temporary custody so that the boy’s papers could be filed with INS and decided on the merits.

RAY SUAREZ: Well, is there someone who really can stand in a Florida court and according to the family law of Florida say, “I have standing to speak for this boy?”.

JOSE GARCIA-PEDROSA: INS used to think so and the irony of what is going on is the original position of Immigration on January — December 1st in a written press release was the correct position. This is a custody dispute for the state courts to decide based on a single standard. What is in the best interest of the boy? Six days later on December the 7th, the government did a complete about face, made this a federal immigration matter exclusively. You heard the attorney general’s position — and frankly won’t even permit in the immigration forum for both sides to be heard. We think that’s wrong. That’s not the way we resolved disputes in this country, and we want the opportunity to have both sides heard.

RAY SUAREZ: Bruce Boyer, once the INS has made its ruling in this case, is there a distinction that’s legally relevant to be made here between the views of a Florida court about custody and the views of a federal agency about where this boy belongs?

BRUCE BOYER: Well, I think both the INS and the Florida state court first of all are trying to deal initially with the same question, which is — as you put it — who gets to speak for this child? There are somewhat different purposes, but in the end, it comes down to deciding who has the right to say where this child is going to go. The Florida state court has stepped in and issued a temporary custody order and I think that the central question there is whether or not — as you put it — anyone has a right to come into state court – anyone has standing to come into state court — and claim that they should be given the right somehow to speak for this child — whether that is in the context of applying for residency in the United States or some other context. And I think that’s where the greatest problem lies with what’s happened in the state court system.

RAY SUAREZ: Well, does there exist a difference in law between the standing of a father versus a grandmother, versus an uncle or an aunt?

BRUCE BOYER: Absolutely, this is true in every state. It is an issue that was just in front of our US Supreme Court yesterday and it’s a matter that in the first instance is governed by state law. Here you have a law that is very clear in speaking to who has the right to come into court and to ask that they be given temporary legal custody of a child. The state law in Florida is very specific. It includes a number of designated relationships with the child, and as far as I understand, none of the people in Florida meet that definition.

RAY SUAREZ: Mr. Garcia-Pedrosa, your response.

JOSE GARCIA-PEDROSA: Not so, Chapter 751, which is a temporary custody statute geared to doing specific things, in this instance presenting papers to INS, specifically lists the kinds of relatives that may be appointed guardians. What we have here is a flip-flop by INS away from a state court custody proceeding in which the only standard is the best interest of the boy — going to a federal immigration forum where all kinds of political interference has been allowed to take place which has nothing to do with what I still believe is the central issue and should be the sole guiding principles here which is: what is in the best interest of this minor boy.

RAY SUAREZ: Well, if in other situations, ones that don’t involve foreign nations, especially foreign nations with which the United States has no diplomatic relations, would a father who is not demonstrably unfit have this kind of trouble in maintaining custody, custodial care of his child?

JOSE GARCIA-PEDROSA: Remember that the irony of this situation is that the custody of the father has been taken over by the Cuban government. We have no way of knowing whether the father is expressing his true wishes. This is a man whom the government has physically removed from his home. He now lives in a government house with his family. He no longer works. The government is taking care of him, and whenever he goes anywhere he is, shall we say escorted by four government agents. So the nature of the consent or the nature of the wishes of the father is very much an issue until what is in Cuba a highly ideological totalitarian rigid state.

RAY SUAREZ: Well, Bruce Boyer, a lot of legal experts have made this sound very cut-and-dried. But doesn’t the state of American relations with Cuba make this that much more complicated a case?

BRUCE BOYER: I think it really only complicates the case because of the difficulties in understanding the relationship between the state court system and INS. As far as the central questions though, I really don’t think it’s complicated. There are a lot of people here who are arguing that the courts, whether it is INS or the state court system or some part of the government system, should make a judgment about what is in the best interest of that child. But, really, what all of this boils down to, to me, goes back to the question of who speaks for the child. And nobody has a right to impose their will whether it is a judge or extended family member or somebody from INS as to what is in the interests of the child — to take that right away from the parent unless that there is first some showing that the parent is not fit. And those are principles that apply here, I think, across the board.

RAY SUAREZ: Word has come from the office of Senator Jesse Helms of North Carolina that he is considering introducing a bill which would make Elian Gonzalez a United States citizen. Bruce Boyer, does that complicate matters?

BRUCE BOYER: It certainly does. It complicates matters because Attorney General Reno has indicated that while she would like to see this resolved, she is not going to take steps immediately to enforce whatever measures she might take to have the boy returned to Cuba. What that means is because of the delay, Congress may step in and pass a bill or attempt to pass a bill that would grant either residence or citizenship to Elian. The effect of that would essentially be to take out of the hands of the INS responsibility for determining the boy’s fate. And then I’m afraid it would be up to Mr. Gonzalez to come to the United States to stake his claim.

RAY SUAREZ: Mr. Garcia-Pedrosa, what about that possibility?

JOSE GARCIA-PEDROSA: We would welcome any attempt to take away from INS, which has been so inconsistent and frankly unfair, this matter. We agreed with INS’s original position. And what Professor Boyer just said I certainly agree with. If this were treated as a family court custody dispute, the father could come; no one has suggested that his rights should be violated or they should not be heard. The expertise lies in the family courts. The father’s side would be heard. Our side would be heard. And an impartial person who is trained and has experience in these matters would make a decision based on the best interests of the boy. Now, what in the world could be wrong with that? That’s the way by resolve issues in this country — not with these artifices about standing and the right to be heard and so forth. It only blocks the presentation of one side of the issue.

RAY SUAREZ: Well, in many state courts family courts involving matters of custody or where children are going to be raised, that neutral person that you speak of is appointed by the county government, a guardian ad litum who isn’t one of the warring sides in this matter who is in effect the minor’s lawyer. Has someone like that been appointed in Dade County?

JOSE GARCIA-PEDROSA: The state court judge’s order also provides — the answer is yes for the appointment of a guardian ad litum – that hasn’t actually happened, but the judge has ruled that that should happen and that that will happen.

RAY SUAREZ: Bruce Boyer.

BRUCE BOYER: Well, I think there is a great deal of concern that Mr. Gonzalez would understandably have about the system. The statute that has been apply plied here in addition to the question of standing which I do think it’s an important question because that’s what protects any parent from having to go into court and defend their right in the first place unless they aren’t taking care of their child. But beyond that, the statute that has been applied here says that you don’t assign temporary custody to a family member unless you have clear and convincing evidence of the parent’s unfitness; that’s the same standard our Supreme Court has said applies to permanently terminate parental rights — so you have a state court judge who also already decided that there is enough to go on to justify permanently ending the league relationship between Elian and his father. If I were in the shoes of Mr. Gonzalez, I would certainly be skeptical about the ability of the Florida state court system to be fair and even handed.

RAY SUAREZ: But should he be here or a representative of his be in the United States at this moment in your view?

BRUCE BOYER: I think it’s disturbing that it seems increasingly that he is going to have to come here or find a representative to speak on his behalf in order to try and vindicate his rights and to pursue his relationship with his son. It’s unfortunate that it looks like that should have to happen, but if in fact the INS loses its right to speak to what happens to this boy as a consequence of an award of residency or citizenship, then I think Mr. Gonzalez probably would have to find a voice here in the United States.

RAY SUAREZ: Mr. Garcia-Pedrosa, you heard Janet Reno earlier say that nobody wants to see the boy seized. In effect, the way things stand now, I guess the INS has the power — if it so chooses — to send immigration officers to take him. But nobody wants to, nobody on either side seems to want too see that happen. Is that, in effect, what the family can count on now, to get some breathing space?

JOSE GARCIA-PEDROSA: Oh, absolutely not. I hope that we don’t get to that point at all. If there is due process observed, frankly if we go back to the state court custody proceeding that I don’t understand why anyone would fear because that’s where the expertise lies and that’s where the best interests of the boy will be determined — I believe that the family and I certainly will myself as an officer of the court, we would abide by the final outcome. That is not the issue. The issue here at this moment is that through this artifice of denying standing to anyone but the father in Cuba whose freedom is very much in question, only one side is being heard and that is not the American way of doing things. That’s not the legal way of doing things.

RAY SUAREZ: Where do you see this — how long do you see this taking to wrap up? It said that you’ve bought time by heading to the state court?

JOSE GARCIA-PEDROSA: We only headed into the state court because Mrs. Meissner ruled on January 5th for the first time that the same uncle to whom they delivered the boy and they were thrilled to do that when the boy was released from the hospital — they were delighted — INS was — that same man who took this boy into his home with his family, who get him a scholarship at a local private school, who has given him the love and affection that I think everybody can see on television reports, now they won’t even let him speak, and that’s why we went to the state court, to gain legal standing, to present papers so that Immigration will rule on those papers on the merits which it still refuses to do.

RAY SUAREZ: Mr. Garcia-Pedrosa, Bruce Boyer, thank you both.

BRUCE BOYER: Thank you.