Parents, children, prison nations, apartheid nations,and mutilat ing nations

[Robin Charlow]

Perhaps I'm missing something, but it seems the children in these
hypotheticals face a distinctly clearer danger of persecution/mutilation
than Elian Gonzalez upon their return.  (This is not to address Mike
McConnell's point about who decides that issue.)

Robin Charlow
Hofstra University School of Law
Hempstead, New York  11549
email: lawrdc at hofstra.edu
phone (516) 463-5166

>>> "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU> 01/10/00 06:40PM >>>
        This is a genuinely tough question, but let me suggest two
variations:

        1)  Imagine that in 1975, South Africa is not only under
apartheid
but also does not allow blacks to emigrate.  (To my knowledge, South
Africa,
unlike Cuba, *did* allow free emigration, but let's pretend it didn't.)
 A
black mother flees with her child, dies en route, but the child arrives
in
the U.S., where he has family on the mother's side.  The father wants
the
child returned to South Africa, or so he says -- there's always the
possibility that the South African government is pressuring him into
saying
this.

        2)  Imagine that today, Country X (I don't know exactly which
countries come close to fitting this mold, so I'll leave the name
blank)
allows fathers to force their children into clitoridectomies, and
doesn't
provide any escape route (veto by mother, divorce, etc.).  A mother
flees
with her young daughter (several years before the clitoridectomy would
take
place), dies en route, but the daughter arrives in the U.S., where she
has
family on the mother's side.  The father wants the child returned to
Country
X, and here we can assume that the government isn't at all pressuring
him.

        What should the results be either in these cases, or in the
hypo
raised by Sandy -- which more firmly raises questions of U.S. con law
-- in
which U.S. citizen or resident parents are trying to move to the
hypothetical South Africa or Country X, and a judge refuses to let them
take
the child there?

> -----Original Message-----
> From: Sandy Levinson [SMTP:LEVINSON at JURIS.LAW.NYU.EDU]
> Sent: Monday, January 10, 2000 2:47 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Family values
>
> I'm sure I and other people on the list would find it interesting to
know
> what those people who support the Washington Supreme Court (and the
> quasi-absolute right of parents to raise their children as they see
fit)
> think of the attempts of the Cuban exile community to deprive a
Cuban
> father of custody of his young son (and, of course, the young son of
the
> solace that might be gained from living with his father).
>
> I'd also be interested to know what denizens of judicial restraint
think
> of the Florida judge's decision--incidentally, is she appointed or
> elected?--to take jurisdiction and to set the date for the first
hearing
> in early March.  If the judge is an elected judge, then I think that
the
> father is simply getting nothing that could count as due process of
law,
> since it seems clear beyond reasonable doubt that any judge who
ruled
> against the Cuban exiles would be giving up any political future
(and,
> given the passions of the some of the exiles, possibly putting their
lives
> in danger).  (I think that Miami in many ways is like Alabama in
1930:
> Someone not militantly anti-Castro cannot, I strongly suspect, get a
fair
> trial.)
>
> What, incidentally, if young Eitan's father were living in Miami and
> actually decided to return to Cuba.  Would an American (elected)
judget
> have a right, upon suit filed by a non-parent, to intervene and state
that
> returning a youngster to Cuba constitutes child abuse per se?  As I
say, I
> look forward to hearing from proponents of the Washington Court.
But
> perhaps those of us who oppose the Washington Court and would defer
to the
> wisdom of the Washington legislature should also wonder if the fiasco
in
> Miami does indeed illustrate what can happen when politically
> opportunistic judges decide to use the entirely amorphous notion of
"best
> interests of the child" (can we spell "ink blot"?) to pander to
> conventional wisdom.  (I just read a manuscript submitted to the Law
and
> History Review that tells a heart-rending story of a young Jehovah's
> Witness who was removed from his parents custody in Washington State
in
> 1926 for failure to pledge allegiance.)
>
> Sandy