4/28/00 8:35 a.m.
THE NATIONAL REVIEW
Stop Knocking Dads
The Elian case shows a system out of control.
By Stuart A. Miller, senior legislative analyst,
American Fathers Coalition
Nobody was comfortable with the image of armed federal agents breaking into a private home
and snatching Elian Gonzalez. But, although some don't like to admit it, we all know that
it was a rescue, not a raid. The Miami relatives had no more right to custody than you or
I, and it is clear that they were never dealing in good faith. But our courts never had
any jurisdiction over the child either, in spite of the convoluted opinion of the 11th
Circuit Court of Appeals, which confers adult legal status on infants, if they are
aliens.
Under international law, the Hague Convention, which is the international treaty that requires return of children to the lawfully entitled parent in a signatory country, should apply. Cuba is not a signatory to the Hague Convention, but the U.S. is. It is hypocritical, not to mention unethical, for the U.S. to disregard its own self-assigned mandate on handling these cases, simply because we disapprove of the other country's politics.
Furthermore, regardless of whether Cuba is a signatory of the Hague Convention, neither Florida nor any other state can lawfully assert jurisdiction over Elian, except to protect him from being kept here, away from his parent. The court's jurisdiction never rises to a level by which they can entertain a modification of custody or even remotely consider the best interests of the child.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) explicitly applies to cases involving foreign countries. Within the Act, there are specific criteria that identify which state has jurisdiction.
 | The state where the child resided for the past 6 months. |
| The state with the most significant connectionwith the child and with the greatest availability of evidence pertaining to the child's history. The state where the child is, if no other state or country could possibly meet criteria 1 or 2. |
| Criterion 3 doesn't apply because Cuba clearly meets criteria 1 and 2. A fourth criterion is emergency jurisdiction. Emergency jurisdiction is applicable only if the child has been abandoned or is in great danger of being abused here. In that event, emergency jurisdiction lasts only long enough to return the child to the lawful custodian or the state that meets the primary criteria. |
But knowing that the law was ignored - and realizing that if it had not been ignored, this media circus would not have played out the way it did - does not allay our discomfort at seeing armed government agents enter a home to take a child. Yet, we have remained silent on the fact that armed government agents have been invading American homes for decades to intervene in family affairs.
In 1989, I answered a knock on the door, only to be thrown on the ground by two police officers who held me at gunpoint, while social workers entered my home and stripped my son naked to see if he had bruises, as my divorcing wife had alleged. He did not have any bruises.
My lawyer told me that social workers were immune and there was nothing that I could do. The police were apparently acting at the behest of the social workers and were therefore also immune. In spite of exposing all of my ex-wife's lies, she still won custody. Eight years later, my son asked me, "If I get married, can the U.S. government steal my children the way they did me?"
The answer is that, if you are politically incorrect, apparently they can. In my case, I was politically incorrect because I was a dad. In the case of Elian, the anti-Castro folks were politically incorrect to the Administration. And Castro is politically incorrect to the Republican Congress. In the whole mess, we somehow ended up with both sides advocating government primacy over the rights of parents. This is insane.
People are born in many countries, under many forms of government. People also have various forms of religion. Should we seize their children merely because we disagree with their politics or their religion? Where would this end?
People in a free society who advocate taking children away from parents because of where they were born or because of their political incorrectness, are a far greater threat to our freedom than any doomed-to-failure Communist government ever will be.
The primacy of the parent-child relationship must always come first and must be respected. With regard to Elian's interests, we forgot this. This is why his case escalated to the extent that it did. We need to recognize this fact within our own borders, too. Our children have a right to be raised by their parents, just as Elian does by his. Any other proposals are totally unacceptable, and should deeply trouble any freedom-loving society
