Elian Redux

[Michael Rappaport]

        I have a question about the Elian Gonzalez matter.  One central legal
question is who speaks for the child.  I am wondering whether American
law–constitutional, federal or state–would permit the father to speak for
the child in the circumstances of this case.

        There is a great deal of evidence in this case that the father is being
coerced.  First, news reports have stated that the father’s mother (Elian’s
grandmother) is in a government compound in Cuba, and is not allowed to be
in her home.  Second, I saw a reference in the press to a Cuban statute or
regulation that made it a crime to “promote or further” an illegal exit
from Cuba.  If the father did not seek the return of the child to Cuba, he
could conceivably be prosecuted under the statute.  Third, existing
regulation or not, President Castro would appear to have the power (and the
desire) to punish the father if he said he wanted the child to remain in
the US.  Fourth, while the father could conceivably defect, he is being
closely watched by the Cuban government and his new wife was apparently
required to leave her other young child in Cuba to prevent the family from
defecting.

        Under these circumstances, does or should American law treat the
“announced” decision of the father as his actual decision?  Presumably,
this is a question of fact.  But given the circumstances, what evidence
would convince us that the father actually wanted Elian to be brought back
to Cuba?  If the coercion prevents the father from honestly speaking his
mind, then does American law transfer custody to another relative?

Mike Rappaport
University of San Diego
        School of Law



At 05:27 PM 4/20/00 -0400, you wrote:
>        The critical issue has been, I thought, from the beginning: who
>speaks for
>the child?  If the 11th Circuit decides that the child has rights
>independent of, say, his father, and can apply for asylum on his own (with
>the help, say, of a court-appointed guardian ad litem), then arguably a
>grant of asylum would result in the inability of the father to remove his
>son from the U.S.  Also if the Court decides that Elian's Miami relatives
>may speak for him and override the father's wishes if asylum is granted,
>then Elian remains here despite his father's wishes.  Either of these
>results would shock me, but then again I am easily shocked.

Michael Rappaport
Professor of Law
University of San Diego School of Law
(619) 260-2329