Parallels to Elián case end in the courtroom
The custody case of a 4-year-old Cuban girl has stirred up memories of Elián González. But experts say the legal disputes are miles apart.
BY JAY WEAVER
[email protected]
Related Content
U.S.-Cuba custody fight brews over girl
AND CAROL MARBIN MILLER
The custody dispute over a Cuban girl in Miami seems like a sequel to the legal war over the fate of Elián González, the Cuban boy whose rescue at sea seven years ago became a long-running drama with the Clinton administration, many Miami exiles and Fidel Castro's government.
Both children left Cuba with their mothers. The girl's mother was found unfit to care for her; Elián's mother died at sea. Then the Cuban fathers sought their return to the communist country.
But for all the similarities disclosed in Saturday's Miami Herald story, their legal cases are vastly different, say experts and those involved in the Elián case.
''On the human side, the parallels are striking,'' said former U.S. attorney Kendall Coffey, who was among a team of lawyers who represented Miami relatives seeking to keep Elián here. ``In legal terms, the cases are light years apart.''
Said University of Miami Law professor Bernard Perlmutter: ``This is apples and oranges.''
Consider:
• The 4-year-old girl's case is essentially a custody dispute playing out in a Miami juvenile court, where a state judge will decide whether her father is fit to take custody. Both mother and daughter entered the country legally two years ago.
Elián's case, a federal court matter, was fundamentally about whether he had the right to apply to the U.S. government for asylum after the five-year-old's mother died while they crossed the Florida Straits in November 1999.
U.S. immigration authorities temporarily allowed Elián, rescued at sea, into the country for medical treatment.
• The 4-year-old girl's case landed in court after the state Department of Children & Families found the psychologically troubled mother was unfit because of her abusive behavior toward the daughter. She was placed with a Cuban American family in Coral Gables -- a family that state child welfare administrators say is more fit than the girl's Cuban father to raise her.
Elián ended up in court when his Miami relatives, who represented him, sought an asylum hearing, citing the oppressive government of Cuban leader Fidel Castro. That triggered a confrontation with top federal officials, who found Elián did not have the right to seek asylum and that his Cuban father spoke for him. The father wanted his son returned to Cuba.
• The 4-year-old girl was placed with a Cuban American family in Coral Gables -- a family state child welfare administrators say is more fit than the girl's Cuban father to raise her. Three sources with knowledge of the case say state child-welfare workers have asked Circuit Judge Jeri B. Cohen -- who issued a gag order to all the parties -- to grant that same family long-term custody of the girl. The girl's father in Cuba wants custody.
That's where the similarities and differences end.
MANY AGENCIES
In Elián's case, a federal judge in Miami sided with immigration officials, saying they had the authority to decide whether to process Elián's asylum request.
That set off the confrontation between the boy's relatives, others in Miami's Cuban exile community and the Clinton administration.
In Elián's case, the Miami relatives refused to turn him over to authorities, leading to the government's repeal of the boy's temporary parole. Heavily armed federal agents then seized Elián in a pre-dawn raid from his relatives' Little Havana home seven years ago.
At the same time, a state judge in Miami threw out the relatives' bid for temporary custody of the boy, saying Elián's great uncle didn't have the legal right to make such a claim.
The judge also cited federal supremacy.
By comparison, the unfolding custody dispute over the four-year-old girl doesn't even raise international, constitutional or any other federal issue. Boiled down, it's a traditional child dependency issue for the state court to decide.
''The girl's case really doesn't implicate concerns of immigration or political asylum,'' said Perlmutter, director of UM's Children and Youth Law Clinic.
``At the heart of her case is whether she is a dependent child who has been abused or neglected by her mother or father. That will be the state's burden to prove.''
JUVENILE COURT
Because of a secrecy order, the battle over the youngster has played out quietly in the juvenile courthouse in Allapattah.
As is customary in most juvenile cases, The Miami Herald is not revealing the identity of the family.
The girl, whose identity is being withheld by court and child-welfare administrators.
The girl was taken from her mother by DCF about a year ago after an investigation into charges that the mother's severe mental illness made her an unfit parent, sources told The Miami Herald.
The agency also took custody of the mother's preteen son, who also came two years ago to the United States.
But his Cuban father, who is different from the girl's father, agreed to surrender his parental rights, so there is no dispute about his staying in the United States, sources said.
DAD SEEKS CUSTODY
The girl's father, though, is pressing to gain custody. His lawyer is Ira Kurzban, a prominent immigration attorney who has represented the Cuban government in the past.
Kurzban could not be reached for comment on Saturday.
In Cuba, the mother of the girl had a short-lived relationship with the father, a source said. They were not married. The relationship had ended by the time the woman and both her children entered the United States two years ago.
Within about a year of the mother's arrival, she stopped taking psychiatric medication, several sources said. Long-term parenting problems emerged.
After a call to the state's child-abuse and neglect hot line, DCF investigators took custody of the two children. Both children are now living with Coral Gables family.
The father has been denied permission by the U.S. State Department to enter the country to appear in court, a decision that has hindered his ability to fight for custody of his daughter.
A visa can be granted to the father for a temporary appearance in court, legal experts said, but it is uncertain whether the Cuban government Castro would allow him to come to Miami.
UNFIT FATHER?
State child-welfare attorneys are arguing in court that the father in Cuba is unfit to have custody because he took no action to safeguard the daughter from her mother's abusive behavior while on the island, a source said.
State child welfare workers have not suggested the father himself was physically abusive to the children.
At one point, the girl's mother told child welfare workers she would prefer that the girl live with her father in Cuba rather than in foster care, two sources told The Miami Herald.
As for Elián, he has remained a celebrity in his native Cuba.
At his 13th birthday party celebrated in his hometown of Cardenas, the guest of honor was none other than acting President Raúl Castro, who sat in for his ailing brother, Fidel.
The custody case of a 4-year-old Cuban girl has stirred up memories of Elián González. But experts say the legal disputes are miles apart.
BY JAY WEAVER
[email protected]
Related Content
U.S.-Cuba custody fight brews over girl
AND CAROL MARBIN MILLER
The custody dispute over a Cuban girl in Miami seems like a sequel to the legal war over the fate of Elián González, the Cuban boy whose rescue at sea seven years ago became a long-running drama with the Clinton administration, many Miami exiles and Fidel Castro's government.
Both children left Cuba with their mothers. The girl's mother was found unfit to care for her; Elián's mother died at sea. Then the Cuban fathers sought their return to the communist country.
But for all the similarities disclosed in Saturday's Miami Herald story, their legal cases are vastly different, say experts and those involved in the Elián case.
''On the human side, the parallels are striking,'' said former U.S. attorney Kendall Coffey, who was among a team of lawyers who represented Miami relatives seeking to keep Elián here. ``In legal terms, the cases are light years apart.''
Said University of Miami Law professor Bernard Perlmutter: ``This is apples and oranges.''
Consider:
• The 4-year-old girl's case is essentially a custody dispute playing out in a Miami juvenile court, where a state judge will decide whether her father is fit to take custody. Both mother and daughter entered the country legally two years ago.
Elián's case, a federal court matter, was fundamentally about whether he had the right to apply to the U.S. government for asylum after the five-year-old's mother died while they crossed the Florida Straits in November 1999.
U.S. immigration authorities temporarily allowed Elián, rescued at sea, into the country for medical treatment.
• The 4-year-old girl's case landed in court after the state Department of Children & Families found the psychologically troubled mother was unfit because of her abusive behavior toward the daughter. She was placed with a Cuban American family in Coral Gables -- a family that state child welfare administrators say is more fit than the girl's Cuban father to raise her.
Elián ended up in court when his Miami relatives, who represented him, sought an asylum hearing, citing the oppressive government of Cuban leader Fidel Castro. That triggered a confrontation with top federal officials, who found Elián did not have the right to seek asylum and that his Cuban father spoke for him. The father wanted his son returned to Cuba.
• The 4-year-old girl was placed with a Cuban American family in Coral Gables -- a family state child welfare administrators say is more fit than the girl's Cuban father to raise her. Three sources with knowledge of the case say state child-welfare workers have asked Circuit Judge Jeri B. Cohen -- who issued a gag order to all the parties -- to grant that same family long-term custody of the girl. The girl's father in Cuba wants custody.
That's where the similarities and differences end.
MANY AGENCIES
In Elián's case, a federal judge in Miami sided with immigration officials, saying they had the authority to decide whether to process Elián's asylum request.
That set off the confrontation between the boy's relatives, others in Miami's Cuban exile community and the Clinton administration.
In Elián's case, the Miami relatives refused to turn him over to authorities, leading to the government's repeal of the boy's temporary parole. Heavily armed federal agents then seized Elián in a pre-dawn raid from his relatives' Little Havana home seven years ago.
At the same time, a state judge in Miami threw out the relatives' bid for temporary custody of the boy, saying Elián's great uncle didn't have the legal right to make such a claim.
The judge also cited federal supremacy.
By comparison, the unfolding custody dispute over the four-year-old girl doesn't even raise international, constitutional or any other federal issue. Boiled down, it's a traditional child dependency issue for the state court to decide.
''The girl's case really doesn't implicate concerns of immigration or political asylum,'' said Perlmutter, director of UM's Children and Youth Law Clinic.
``At the heart of her case is whether she is a dependent child who has been abused or neglected by her mother or father. That will be the state's burden to prove.''
JUVENILE COURT
Because of a secrecy order, the battle over the youngster has played out quietly in the juvenile courthouse in Allapattah.
As is customary in most juvenile cases, The Miami Herald is not revealing the identity of the family.
The girl, whose identity is being withheld by court and child-welfare administrators.
The girl was taken from her mother by DCF about a year ago after an investigation into charges that the mother's severe mental illness made her an unfit parent, sources told The Miami Herald.
The agency also took custody of the mother's preteen son, who also came two years ago to the United States.
But his Cuban father, who is different from the girl's father, agreed to surrender his parental rights, so there is no dispute about his staying in the United States, sources said.
DAD SEEKS CUSTODY
The girl's father, though, is pressing to gain custody. His lawyer is Ira Kurzban, a prominent immigration attorney who has represented the Cuban government in the past.
Kurzban could not be reached for comment on Saturday.
In Cuba, the mother of the girl had a short-lived relationship with the father, a source said. They were not married. The relationship had ended by the time the woman and both her children entered the United States two years ago.
Within about a year of the mother's arrival, she stopped taking psychiatric medication, several sources said. Long-term parenting problems emerged.
After a call to the state's child-abuse and neglect hot line, DCF investigators took custody of the two children. Both children are now living with Coral Gables family.
The father has been denied permission by the U.S. State Department to enter the country to appear in court, a decision that has hindered his ability to fight for custody of his daughter.
A visa can be granted to the father for a temporary appearance in court, legal experts said, but it is uncertain whether the Cuban government Castro would allow him to come to Miami.
UNFIT FATHER?
State child-welfare attorneys are arguing in court that the father in Cuba is unfit to have custody because he took no action to safeguard the daughter from her mother's abusive behavior while on the island, a source said.
State child welfare workers have not suggested the father himself was physically abusive to the children.
At one point, the girl's mother told child welfare workers she would prefer that the girl live with her father in Cuba rather than in foster care, two sources told The Miami Herald.
As for Elián, he has remained a celebrity in his native Cuba.
At his 13th birthday party celebrated in his hometown of Cardenas, the guest of honor was none other than acting President Raúl Castro, who sat in for his ailing brother, Fidel.