A TUG OF WAR

December 8, 1999
		The rescue of a Cuban boy off the Florida coast onThanksgiving Day has created a political firestorm between Cuba and the U.S. After a background report, Ray Saurez leads a discussion over the international custody battle for six-year-old Elian Gonzalez.

Dec. 8, 1999: A discussion on the tug of war over Elian Gonzalez. Jan. 1, 1999: Cuba marks 40 years of rule by Fidel Castro March 20, 1998: Easing restrictions on Cuba Feb. 9, 1998: Cuba after the Pope's visit Feb. 4, 1998: Cuba prepares for a visit from the Pope Jan. 28, 1998: Will the Pope's visit affect how two countries deal with each other? Jan. 28, 1998: Two U.S. civilian aircraft downed by Cuban MiGs Browse the NewsHour's coverage of Latin America and Youth   State Department	RAY SUAREZ: For more on the Cuban boy in America, we turn to Jose Pertierra, an attorney who specializes in immigration and human rights law; Yvonne Conde, author of "Operation Pedro Pan," a book about people, such as herself, who were sent to the United States from Cuba as young children in the years following the communist revolution; and Otto Reich, senior associate at the Center for Strategic and International Studies. He served as ambassador to Venezuela and special adviser to the secretary of state during the Reagan administration. Jose Pertierra, as a lawyer, this is complicated case, a simple case for you?
	A legal battle
	JOSE PERTIERRA, Immigration Lawyer: Well, if you look at it from the point of view of the law, it's not a complicated case. The law says that the father is presumed to have proper custody of this child unless he's shown to be an unfit parent, and there's absolutely no evidence in this case to demonstrate that this man is unfit to be the custodial parent of Elian Gonzales. What complicates the matter is that the little boy happens to be Cuban, and the rules of the game are different somehow in this country when it comes to Cuban immigrants. That's what's complicated. If you look at it strictly from the point of view of immigration law and family law, I think it's crystal clear that custody belongs to the father. RAY SUAREZ: But Otto Reich, you would make a distinction between what the law says in black and white and a moral imperative? OTTO REICH, Center for Strategic & International Studies: Well, I think we will see what the law says, because as I understand it, there's going to be a hearing in Florida court. What's going to be interesting, and this is the difference between the United States and Cuba, is whether the Cuban government allows the father to come and present himself and present his case in that court. And I think it's very likely that if there is no coercion, which is the common case in Cuba, that there is coercion, that the father may very well ask for political asylum. And Fidel Castro knows that and he probably will not let the father come with some guarantee that he is not going to seek political asylum in the United States. RAY SUAREZ: So keep Elian here is what you're saying? OTTO REICH: I think we have to take into consideration the conditions that this...that the boy's mother, and let's remember, by the way, that the mother was divorced from the father. The father was not the custodian of the child. There was a stepfather. They both died, the stepfather and the mother died in an attempt to bring this child to freedom. They gave their lives so this boy could exercise the freedoms that we take for granted. I think that has to be taken into consideration. Ten years ago, we did not return five-year-old East German children back to East Germany if their parents had the luck to climb over the wall. And this case, what happened in this very dramatic and very tragic case is very similar. It's an escape from communism. And what we ought to also be very careful about is not to fall into the trap that I think we're already falling into, the cynical trap that the Cuban government and Fidel Castro has woven that they make it appear this case is all having to do with this child. It has to do with the fact that Castro has a lot of domestic problems. Like all dictators, whether Argentine generals or Milosevic, they create international crises to avert attention from the conditions in their countries.
	Operation Peter Pan
	RAY SUAREZ: Yvonne Conde, when you've been reading this story in the papers, you must have had a flashback to your own young life and the stories you've heard from all the children now adults who were brought over by the Operation Peter Pan. YVONNE CONDE, Author: Yes, I was ten years old. I was alone in this country, too. I didn't know when my parents were coming. The majority of the Pedro Pan children, 14,000 of them who were sent out of Cuba alone by their parents to save them from communism, 85 percent of them, NAFTA, say they are very happy that their parents sent them out of Cuba alone, although for many the separation was for many years, and some never saw their parents again. Still, they are glad. I certainly am glad that my parents sent me out. RAY SUAREZ: But there must have been some difficult times. Elian as a six-year-old is probably caught up in a swirl of events that he can't necessarily understand. YVONNE CONDE: Of course. And we're not denying there was pain and there was suffering for us. And I'm sure there are for Elian. I really empathize with him so much. My heart goes out to him. I think this is a Solomonic decision that has to be made. But the child is having a taste of freedom. He's having choices. Choices he will not have back in Cuba. Some of the Pedro Pan children too, in fact, went become to Cuba, and one of them returned three years ago, after trying to leave Cuba most of her adult life. The other one who came back five years ago, and we wonder, will Elian come back to the United States in a few years by his own choice? RAY SUAREZ: Jose Pertierra, does the fact that this is a six-year-old boy that we're talking about make some difference? Give him less latitude than, for example, Walter Polabcuk, the young Ukrainian who was 14 when his parents decided to leave Chicago and go back home. He said, "no, I want to stay here."
	Children seeking freedom
	JOSE PERTIERRA: I think this case is clearly distinct from that one because in the case you're talking about in the Ukrainian boy, that boy was a teenager. This is a six-year-old boy. I don't think that six-year-old children are in the business of being able to say which parent or which adult they would like to live with. And this case is also different from the Pedro Pan cases because in the Pedro Pan cases that Ms. Conde talks about, the parents chose to send their children to the United States. In this particular case, the father is in Cuba and does not wish his son to live in the United States. Now, Mr. Reich may not want this boy to live in Cuba, but unfortunately this boy is not Mr. Reich's son. The father in this case is the one who has ultimate authority as to where and how this child should live. If the child then grows up and reaches the age of majority and decides to live in the United States, then we're talking about a different matter. But right now the father has decided to live in Cuba. There's absolutely no evidence of any coercion. On the contrary. All evidence is this father is a member of the Communist Party and has chosen on the live in Cuba -- freely and of his own volition. OTTO REICH: I don't know where Mr. Pertierra is getting his information. It has to come from the government of Cuba - otherwise there is no other source of information. How does he know how the father really feels in a country where there is no freedom of speech, no freedom of the press, no freedom of association. You can belong to the Communist Party or you don't belong to the Communist Party. I mean, I think the father should come here, see the child and participate in that hearing. This is what the law prescribes. I hope you're not saying we should send the child back without a hearing, according to U.S. law. JOSE PERTIERRA: Well, so far there's been no case presented in a family court. OTTO REICH: I understand that. The U.S. Government has said there will be a hearing in Florida court. JOSE PERTIERRA: In order for... OTTO REICH: And that all the parties involved, including the father... The U.S. according to the U.S. State Department today is going to contact or has contacted the father, as the law requires. JOSE PERTIERRA: Well, in order for there to be a hearing in family court, it's not up to the United States government to present the complaint for custody. It's up to the family of the little boy in Miami. OTTO REICH: He has a family. JOSE PERTIERRA: I know he has a family here, but that family so far has not presented a complaint for custody. So right now there is no legal impediment. There hasn't been any writ issued by a Florida judge to prevent this boy from being sent back to Cuba and to obey the wishes of his father. Right now the United States government could comply with the wishes of the father of Elian Gonzales, put him on a plane and send him back. If he were from any other country, if he was a Guatemalan boy or Mexican boy, he would have been on a plane long ago. OTTO REICH: But if he were Guatemalan, he would not be sent back to the... to a country where the president of that country ordered the sinking of a tugboat with 72 people on board, and 41 of them died, including ten children under the age of 15. That has to be taken into consideration.
	An uncertain future in Cuba
	RAY SUAREZ: Yvonne Conde, I guess this is a illustration of how putting Cuba in the mix changes everything. YVONNE CONDE: Well, it is a different situation. There is a legal precedent, I hate to disagree, but there is a legal precedent in the 60's. Two teenage boys were sent out by their mother, and the mother was not allowed to leave Cuba. She was a scientist. And they needed her there. Some months later there was a claim for the... accordingly it was from the mother for the children to return, and in family court, Catholic Charities upheld that the decision that the children would not be sent back to Cuba unless the mother herself came to Miami to pick them up. And of course they never allowed her to. And the children grew up here, didn't reunite with their family until 20 years later. RAY SUAREZ: Well, if this was a Haitian boy, a very similar geographical situation, a very similar problem over the years with immigration, how much is just the fact that he would live in poverty or may live in poverty entering into this? We heard his cousin in the tape report talking about how this would give him opportunities and a better lifestyle. Should that intrude or over the fact that the father is alive and seems the want the kid? OTTO REICH: Well, I'm not a judge. And I agree with Ms. Conde that this will require a Solomonic decision. I think all factors have to be taken into consideration. Unfortunately, if he returns to Cuba, he live in poverty. Cuba is the only country in this hemisphere whose per capita caloric intake has dropped in the last 40 years. Not even Haiti has experienced that decline. If Castro really cares about Cuban children, he will change the economic system that has condemned these children and parents to risk 90 miles of shark-infested waters to reach the United States. RAY SUAREZ: Well, then, quickly, Jose Pertierra, is there a legitimate place in a hearing to discuss the relative prospects for this boy if he does return and the fact that he may be less well nourished, less well educated? JOSE PERTIERRA: Well, first there has to be a complaint filed in a family court. Thus far there hasn't been one. But in the event one is filed, I don't think the fact that the father lives in poverty as against Miami really has any bearing on what kind of a father he is. Just because a person is poor doesn't mean he's a bad father. Just because a person lives in Watts, for example, doesn't mean that his children are better off in Beverly Hills with a distant relative. I don't think the material reaches of this country can compare with the value of the relationship between a father and his son. RAY SUAREZ: Jose Pertierra, Yvonne Conde, Otto Reich, good to talk to you all.