Commentary

Two Opposing Libertarian Arguments in the Custody Case of Elian Gonzalez

Tom Palmer: Don’t Send Elian to Prison

Elian Gonzalez’s mother died bringing him to a free country. That moves my emotions. Sending him back to a dictatorship that does not allow its subjects even to leave the country would be a grave injustice and a violation of his rights. That moves my reason. After weighing the reasons for and against sending Elian back to Cuba, I conclude that it would be wrong.

Let’s start with facts. Cuba is not just another country. It’s not that Cuba is poor; there are other relatively poor countries in the region, such as the Dominican Republic and Belize. What makes Cuba unlike all other countries in the Americas is this: Cuba is ruled with an iron fist by a single man, who exercises more power than any medieval king, who has executed some 15,000 of his opponents, and who tolerates no free press, no opposition parties, no criticism. To support his tyranny, he’s made it illegal to leave the country. Why? Because he considers “his people” the property of the state and that, since he is the state, they belong to him. Cuba is a vast island prison, and Fidel Castro is judge, jury and jailer.

Advocates of returning Elian to Cuba focus on the right of the sole surviving parent to make decisions concerning the child’s future. That is a very good reason to reunite father and son. But consider the fact that we cannot know with certainty what the father’s real beliefs are (how many prisoners would dare to openly express their preferences?). Consider also that sending the boy to Cuba is effectively a one-way trip to a prison that he will not be able to escape, even after he reaches adulthood. The father’s parental rights count, but other considerations should convince us to allow Elian’s uncle in Miami to assume responsibility for him.

Some say that it’s not the father’s fault that he lives under a dictatorship. I agree. In fact, I feel truly sorry for him. But if a father were unjustly imprisoned for life on Alcatraz, who among us would want to force his son into life imprisonment as well? Surely, we must respect the son’s rights, however much the father might want his son to be with him in prison. If there are capable guardians who can take responsibility for the child, then it is only reasonable to award custody to someone who can raise the boy to manhood — outside of prison. And there is a good candidate: Elian’s father’s own uncle, who is currently fighting for custody.

Remember that if Elian is sent to Cuba, he can never escape. It’s for life. But if he is allowed to stay, he can always go to Cuba upon reaching the age of consent. Sending him to Cuba is irreversible, but when he is old enough he can choose for himself where he wants to live.

The “demonstrations” that the Castro regime has organized in Cuba should not fool us, either. A lot of the very same people who are shipped to these rallies in government buses would leave the country in a heartbeat if they had the chance. Anyone who knows anything about how totalitarian regimes work knows that those marches and rallies are not reliable expressions of how anyone other than the ruler feels.

Don’t condemn an innocent boy to a life in prison. Don’t send Elian Gonzalez to Cuba.

Derrick Max: A Parent’s Right to Decide

Clear rules consistently applied are the hallmark of the rule of law. They are especially important to such crucial issues as the autonomy of the family and limits on government controls. The key question in the case of Elian Gonzalez is who should have legal custody of the boy. U.S. custody decisions are rightly founded on the principle that fit, living parents should retain custody. The Immigration and Naturalization Service has determined that the father is fit to assume custody of Elian, and that determination should be enforced.

It is fair to question whether Mr. Gonzalez is a fit father, but in order to deny his parental rights, it must be demonstrated that Mr. Gonzalez is unfit. To my knowledge, no one has even attempted to do so. Indeed, all involved seem to agree that the evidence is that he is a loving and good father. The argument therefore shifts to the conditions under which Juan Gonzalez would raise his son. Cuba is certainly a most unattractive place: it is poor and it is unfree. But do we want courts to determine that anyone who is richer than a natural parent can wrest away from the parent the right to raise his own child? Do we want courts to determine that the laws of a foreign state disqualify parents who live there from claiming their own children? Should a court in Virginia determine that, for example, California has adopted unsound policies and therefore the court would not send a six-year-old back to his father in California and instead award custody to a Virginia-based uncle?

Of course, some conditions under which a child would be raised might be so terrible that a court should award custody to another party. But all would agree that the threshold to be reached before a parent should be stripped of custody is very, very high. Does living in Cuba reach that threshold? It does not.

Despite its pervasive socialist poverty, Cuba is not so poor that living there constitutes child abuse. So let’s turn to the lack of basic rights and freedoms. There is no doubt that Cuba’s restrictions on personal liberty are bad, but so are the restrictions in many other parts of the world where parents struggle to raise their children properly. Like Cuba, other countries have compulsory military conscription; they have restrictions on freedom of speech; they have one-party rule; they have secret police and government spies infiltrated throughout society. But even adding those up does not reach the threshold required to determine that the conditions of parenting make the parent unfit. If the child were to be returned to certain death, or to slavery, or to some similarly horrible fate, then the matter would be different. But as bad as it is, Cuba is not at present that bad. And in any case, Fidel Castro will not last forever. We don’t know what Cuba’s future will hold, but it is unlikely to be a dictatorship forever.

Finally, there is the issue of whether Juan Miguel Gonzalez is speaking under duress. Can we possibly know his real wishes? We do know that he has expressed a wish to have his son back. Whether this was uttered because of fear of reprisal or true conviction is irrelevant. If the former, he might not be a courageous man. If the latter, he might even be a dedicated Communist. But neither lack of courage nor foolish ideas are sufficient to deny the rights of a parent or to deny the right of a child to be cared for by a parent.

This is a matter of a parent’s rights and the rule of law, and the relevant authorities have spoken. Elian Gonzalez and his father should be reunited.

Tom G. Palmer, fellow in social thought at the Cato Institute, spent much of the late 1980s and early 1990s smuggling books about liberty and other subversive materials into communist-ruled countries. Derrick Max is director of government affairs at the Cato Institute and the father of three children.