April 12, 2000

Elián And The Lie of Absolute Parental Rights

By: Alberto Luzárraga

The recent case of Elián Gonzalez has brought the subject of parental rights or Patria Potestas to the fore. I have listened with increasing indignation to a steady parade of so-called legal experts that trumpet the so-called "principle" of family law that parental rights are absolute. This "absolute" character is made to be an eternal principle established in all the legislation's of the world and particularly western law.

As usual, when there is bad faith the truth is mixed with lies and exaggerations. All good lies contain a kernel of truth, so lets put to rest the issue of parental rights as they are in tradition and reality.

What are parental rights? They are a complex term that involves rights and duties. Parental rights are defined as the right and duty to protect, nurture and educate. Note the operative words, right and duty. If you don't fulfill your duties, or are suspect of not being able or willing to fulfill them, you lose some of these rights or somebody is appointed to represent the minor.

This was not invented recently. Lets start with the origin of the concept in western law. The most useful antecedent in western legal thought is Roman law. Originally the roman family was organized around the "pater familias" who had practically life and death authority over his family. This authority, so severe in the letter of the law but not used in practice, was mitigated by the Romans fine juridical instincts. As jurists, they provided for "curators ad litem" or judicial defenders when the interest of the child and that of the parent were at odds. They even went as far as designating a "curator ad ventris" or guardian of the infant in the womb to guard the interests of the unborn.

The advent of Christianity softened the institutions. In the reign of the Emperor Justinian around 1500 years ago parental authority was supposed to be exercised as follows: "non debet in atrocitate sed in pietate consistere" which means authority should not be exercised severely but kindly.

This disposition towards kindness is what makes parents sacrifice for the sake of their children. It is very clear that kindness implies that duties are involved. Lack of kindness to children or dereliction in the fulfillment of parental duties is the basis for judicial intervention to insure that children are not neglected or abused. Duties and rights accrue to both parents who are vested with them jointly. In the case of death of one of them the surviving parent is normally vested with the full parental authority. In the case of abuse or conduct contrary to the rights of the child by one or both parents these rights are diminished or rescinded and custody may change.

In the case of Elián there is a surviving parent. This is the basis for the INS determination that custody belongs to his father and that he speaks for the child. But, are his rights absolute?

When state intervention is warranted it is always because of a divergence of interest between the parent and the child. This is common sense. Therefore to speak of automatic and absolute parental rights regardless of the circumstances is nonsense.

What are the circumstances in Elián’s case? Answer: In totalitarian regimes such as Cuba parental rights are at best vestigial and are not exercised in the interest of the child.

Why? Imagine that you cannot educate your child except in a manner prescribed by the State. Imagine you cannot feed him as you wish because food is rationed due to economic mismanagement. Imagine religious education is prohibited. Imagine your child has to be graded on his socialist conduct in order to progress. Imagine your child is taken away from you and sent to state boarding schools at age eleven and forced to contribute free labor whether you like it or not. Imagine that you are only allowed to see you child three days a month.

All of this happens in Cuba.

You cannot nurture educate or protect. In such a case, do you really have parental rights or are you simply a "nanny" for the state? And this is the real issue: Let us assume Juan Miguel Gonzalez is really a good communist that wants to take his son to Cuba to be indoctrinated in Marxist atheism and to grow up like a good slave.

Does he have the right to do whatever he pleases? Does he not have duties that he cannot fulfill or violate as the case may be?

The Declaration of human rights states: "Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms."

We know also that Elián’s mother whom had custody was a believer and taught her child to pray. We know that the child was praying when rescued from the sea.

We know that the declaration of human rights states: Article 18.Everyone has the right to freedom of thought, conscience and religion … to manifest his religion or belief in teaching, practice, worship and observance.

We know that the child is a person and has been placed in the custody of people that are following the desires of his mother to rear him in a free environment that respects his rights as a person.

We know that international treaties and conventions such as the Convention on the Rights of the Child (signed and ratified by Cuba on 26 Jan 1990 and 21 Aug 1991 respectively) establishes that parental rights have to exercised for the benefit of the child. Indeed it states: in its article 9.1 that separation may be advisable "when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child".

Then I ask why is it that Juan Miguel Gonzales has a right to say: I am a happy slave and I want my son shackled to my leg, because it is my will. Is this justice? Of course not, it is the equivalent of saying the child is a chattel, that he is an object, a movable good, a sack of potatoes, that can be bandied around to satisfy the obsessions of an aged and crazy dictator that shows no scruples in bribing, cajoling or threatening just to implement his desires. Why is it that Juan Miguel Gonzales has been moved from his modest home to a mansion in Havana, why is it that he has been promised all he wishes?

Isn't the motive very clear to anybody that wants to see?

Do not fall for a gross twisting of the truth, sound bites and a self-serving interpretation of the law.

Again, I ask you to look at the declaration of human rights Article 6 Everyone has the right to recognition everywhere as a person before the law. Elián is a person. Yes he is a minor, and his capacity has to be complemented by somebody else but that person is not automatically his father. Elián has other interests that are worthwhile and somebody has to express them for him before a judicial authority.

Article 14 Everyone has the right to seek and to enjoy in other countries asylum from persecution.

Elián will be persecuted because the system demands daily and absolute conformity and punishes the lack thereof. The right of asylum is granted to all persons by US and international law. To deny a hearing is to oppress a person that cannot defend himself.  It is a despicable act.

A self-serving interpretation of the law joined to selective withholding of information is being fed to the public at large. Maintaining the unity of the family, an objective we all agree upon and share, is being exploited to disguise a Cuban situation where the family is under constant attack and is trotted out only when it suits the dictatorship.

We are facing new issues in family law: The obliteration of parental rights by the state and its apparent restoration as convenient. Now you see it now you don't.

And this is why Castro, and company do not want to grant this child an asylum hearing, or allow the issue to be decided by a family court. The asylum hearing or the family court proceedings would of necessity constitute a trial of the Castro regime.

I don't know how this case will end. By the time you read this article the child may be back in Cuba. However it ends I do know this: if you give this complicated matter your full attention you will see through it and understand that it is a well thought out farce. And this knowledge will be useful to you in the future.

Copyright: Alberto Luzárraga. 2000