Elian II: The Sequel

Posted: Oct 19, 2007 12:01 AM
Elian II: The Sequel

WASHINGTON -- Children in the foster care system face enough challenges without adding politics and ideology to the mix, never mind the C-word.


"Elian II," the sequel we hoped never to see, is what fathers' groups are calling a Miami case that once again highlights our confusion about paternal rights in child custody battles.

This time, the dispute revolves around a 5-year-old Cuban girl, her biological father in Cuba, her mentally unstable mother in the U.S., a passel of relatives, therapists, guardians ad litem, activist attorneys and, finally, a wealthy, influential Cuban-American foster family.

Elian and "E," as we'll call the girl, have similar stories. In Elian's case, the father wanted his boy returned to Cuba after the child's mother drowned en route to the U.S., but family members in the U.S. wanted him to grow up here. Few can have forgotten how then-Attorney General Janet Reno sent armed troops to remove Elian from his Miami home and return him to Cuba.

In E's case, the facts are a little muddier, but the principle is the same: Does the biological father, assuming he is fit, have a right to his own child? The answer should seem obvious: Not yes, but hell yes.

But what's obvious isn't always so. E is another tragic case in point.

There isn't enough space here to describe the many complications -- and questionable behavior -- in this sordid saga. In her recent ruling, for instance, Circuit Judge Jeri B. Cohen criticized "unprofessional conduct by certain members of the defense team and a general hostile environment in the courtroom."

Briefly, E was 2 when she came legally to the U.S. along with her mother, Elena Perez, a half-brother and a "stepfather," who agreed to marry Perez so that he could make the trip, according to Cohen's ruling. Perez had won a Cuban visa lottery that allows the winner, a spouse and minor children to emigrate to the U.S. under special parole authority.

The stepfather dumped Perez and the children immediately upon arrival, whereupon Perez began to unravel. When she attempted suicide in 2005, she lost custody of her kids to the state.

Both E and her half-brother were placed in temporary custody with a well-known Miami couple, Joe Cubas and his wife Maria. Cubas is a wealthy sports agent, both controversial and revered by many in the Cuban community for helping Cuban athletes defect and assume careers in American baseball leagues. Cubas also has worked with a Miami orphanage for abused children stuck in long-term foster care.

Among those he helped was E's half-brother, whom the Cubases have adopted.

The custody case has dragged on so long that E has bonded with the Cubases, who have a home in upscale Coral Cables, a swimming pool and a boat. Life is good, and few dispute that the Cubases have offered a stable, nurturing home to the two children.

By contrast, E's father, Rafael Izquierdo, is a poor farmer who lives with his common-law wife and another child in rural, central Cuba. He is generally regarded as hardworking, though as Cohen wrote in her ruling, he is a "somewhat passive and unsophisticated individual who approaches life in very simplistic and concrete terms."

Projecting our own values, it's easy to imagine that E would be materially better off in America. We'd all prefer to live among prosperity in a free country than in relative poverty under a communist dictatorship.

But that's not the point. We don't disenfranchise parents or deny children their natural parents, assuming they're fit, based on politics, income or material goods.

In fact, Cohen ruled last month that Izquierdo is a fit father and that E should go home with him. But child welfare officials want to keep her here and have spent $250,000 to that end, by The Miami Herald's estimate.

On Monday, state attorneys filed a notice of appeal to try to overturn Cohen's ruling, claiming that E's removal from the Cubases would be damaging to her.

Separating E from her foster family now may indeed cause emotional trauma for all involved. But it's hard to imagine under what circumstances a child would be given to foster parents over a fit biological parent who wants to raise her.

The sad truth is that E should have been put on a plane back to Cuba as soon as her mother was determined unfit.

E had a father then. She has one now.