January 20, 2012
Few would come close to the nightmare of having the Federal Government involved in the proceedings while it was under intense scrutiny by the national media.
The custody battle over Elián González involved those elements and more.
12 years ago today, Elián’s two grandmothers from Cuba – Mariela Quintana and Raquel Rodríguez – were issued U.S. visas , and were the first family members to travel to the U.S. to advocate for the boy’s return to Cuba.
The saga started when Elián had left Cuba with his mother, her boyfriend, and eleven others on November 20, 1999.
Two days later, Elián’s father in Cuba, Juan Miguel González Quintana, phoned his paternal great-uncle Lázaro in Miami, and informed him that Elián and his mother had left Cuba without Juan Miguel’s knowledge, and to watch for them in Miami.
However, Elián’s mother, along with ten other passengers, didn’t survive the journey.
On November 25, 1999, Elián was found by two U.S. fishermen clinging to an inner tube several miles off the Florida coast.
After being treated at the hospital, U.S. Immigration and Naturalization Service (INS) temporarily paroled him to the custody of Lázaro.
Lázaro wished for the boy to remain in the U.S., and with his filing of an application for asylum with the INS on December 10, the legal battle for Elián began.
The grandmothers, who were granted visas on January 20, arrived in the U.S. the next day.
They were allowed to meet with Elián once, and spent the next nine days (rest of their time in the U.S.) in Washington, D.C. speaking with congresspeople and Attorney General Janet Reno.
The legal proceedings continued, and, as we now know, they were eventually concluded in favor of Elián’s father, and Elián returned to Cuba, where he lives today.
Despite some public outrage over the decision, immigration law and family law scholars, in analyzing the law behind the decision, found that law and precedent were applied correctly.
Under the immigration lens, a third-party may apply for asylum on behalf of a minor against the express wishes of the parent only if the child has the capacity to understand what he is applying for and has assented to or submitted the application himself.
Considering Elián’s age of six at the time of the asylum application, it’s possible, but not particularly likely that he had the capacity to understand what he was applying for.
Moreover, there was simply no evidence to support grounds stated for asylum – a fear of persecution should Elián return to Cuba.
Lastly, there is no right to asylum, even if those criteria are met; the granting of asylum is at the Attorney General’s discretion.
Interestingly, it was the Clinton Administration’s stance on the issue (allowing Elián to be reunited with his father in Cuba) that many attribute as causing Al Gore’s 2000 election loss in Florida (and the loss of the U.S. Presidency).
Through a family law lens, though, with the political and international implications stripped away, this would have been a pretty easy case.
A mother moves away with her son against the father’s wishes (that’s called parental kidnapping).
Since the mother died, and since there was no evidence of the father being an unfit parent, custody of the minor child should return to the father.
Of course, external factors are often present to complicate family law cases.
Family law practitioners will always hope, though, that the complications in their own cases never reach the same level as those in the case of Elián González.