Though some attempt to play it down, there are some disturbing parallels between the Elian Gonzalez saga and the recent case in which Florida’s Department of Children and Families is seeking to give custody to a Cuban-American family rather than a young girl’s father, still living in Cuba. In Elian’s case, he arrived in the United States after most of the occupants of the boat, including his mother, died at sea. The federal government ultimately decided that the then-five year old boy could not seek asylum through his distant Miami relatives and returned him to his father in Cuba. The saga and the famous picture of federal agents taking custody of the boy may have swayed enough Cuban-American votes to affect the 2000 vote in Florida. (Can we hold Elian responsible for the George W. Bush presidency?) (The opponents of returning him were right about one thing: he became a useful symbol for the Castro regime, though there was surely no resolution that would allow him a normal life out of the media spotlight.)
The new case is a state case, triggered by the removal of the girl from the custody of her mother, after she stopped taking her psychiatric medicine. Because of the different legal context, less is known. The dependency court judge has issued a gag order and it is unclear how any information was leaked to the local Miami paper. But there seems to be a disturbing parallel distortion of the usual legal standards because the father is a Cuban in Cuba.
Ordinarily a parent has a right to custody absent a showing of harm to a child; the test is not, as reported, whether another family is “more fit” than the father to raise her, as child welfare authorities are quoted as saying; the Supreme Court in Troxel v Granville indicated that the US Constitution requires such deference. The Florida officials seem disposed to avoid this rule by suggesting that the father may be unfit because he did not act in Cuba to safeguard the child from the mother’s abusive behavior. Whether that is even true depends on facts about what happened on the island – yet the stories do not indicate if she were abusive then, only that she was in the United States after she “stopped taking her psychiatric medicine” at some time after she arrived. Similarly, the same authorities, who seem to think they can know what happened years ago in Cuba, have simultaneously expressed unwillingness to place the child with her father because they are distrustful of the home study done in Cuba by an independent agency. Meanwhile, the father may be disadvantaged because of legal impediments – whether from US or Cuban authorities – that have prevented him from appearing in person at the Florida court hearings.
As a feminist and a student of transnational family law, I wonder if the “best interests of the child” requires or permits American agencies and courts to apply our law to cases involving foreign parents, uninflected by a recognition of different laws and cultures. It may indeed be true that the father has neglected or abandoned his daughter under criteria that are not parochial, or that his home is sufficiently bad that his daughter should instead be placed with legal strangers by an American agency whose record of protecting children, while recognizing the the interests of parents leaves much to be desired.
There is reason for concern, however. The Hague Convention on Child Abduction would have provided significant protection for the father, if Cuba were a party. It might yet provide a model for what the Florida courts could do in the interests of comity. Then again, this isn’t simply a transnational family law dispute – it may, unavoidably, be another chapter in the battle of the Cuban government vs. the Cuban exile community in South Florida.
(Posted by Mary I. Coombs under the name of her transnational foremother, Charming Betsy)