Two Opposing Libertarian Arguments in the Custody Case of Elian Gonzalez

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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.

Tom Palmer: Don't Send Elian to Prison

Let's start with facts. Cuba is not just another country. It's not thatCuba is poor; there are other relatively poor countries in the region, suchas the Dominican Republic and Belize. What makes Cuba unlike all othercountries in the Americas is this: Cuba is ruled with an iron fist by asingle man, who exercises more power than any medieval king, who hasexecuted some 15,000 of his opponents, and who tolerates no free press, noopposition parties, no criticism. To support his tyranny, he's made itillegal to leave the country. Why? Because he considers "his people" theproperty 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 solesurviving parent to make decisions concerning the child's future. That is avery good reason to reunite father and son. But consider the fact that wecannot know with certainty what the father's real beliefs are (how manyprisoners would dare to openly express their preferences?). Consider alsothat sending the boy to Cuba is effectively a one-way trip to a prison thathe will not be able to escape, even after he reaches adulthood. Thefather's parental rights count, but other considerations should convince usto 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 adictatorship. I agree. In fact, I feel truly sorry for him. But if afather were unjustly imprisoned for life on Alcatraz, who among us wouldwant to force his son into life imprisonment as well? Surely, we mustrespect the son's rights, however much the father might want his son to bewith him in prison. If there are capable guardians who can takeresponsibility for the child, then it is only reasonable to award custody tosomeone who can raise the boy to manhood -- outside of prison. And there isa good candidate: Elian's father's own uncle, who is currently fighting forcustody.

Remember that if Elian is sent to Cuba, he can never escape. It's forlife. But if he is allowed to stay, he can always go to Cuba upon reachingthe age of consent. Sending him to Cuba is irreversible, but when he is oldenough he can choose for himself where he wants to live.

The "demonstrations" that the Castro regime has organized in Cuba shouldnot fool us, either. A lot of the very same people who are shipped to theserallies in government buses would leave the country in a heartbeat if theyhad the chance. Anyone who knows anything about how totalitarian regimeswork knows that those marches and rallies are not reliable expressions ofhow anyone other than the ruler feels.

Don't condemn an innocent boy to a life in prison. Don't send ElianGonzalez to Cuba.

Derrick Max: A Parent's Right to Decide

Clear rules consistently applied are the hallmark of the rule of law. Theyare especially important to such crucial issues as the autonomy of thefamily and limits on government controls. The key question in the case ofElian Gonzalez is who should have legal custody of the boy. U.S. custodydecisions are rightly founded on the principle that fit, living parentsshould retain custody. The Immigration and Naturalization Service hasdetermined that the father is fit to assume custody of Elian, and thatdetermination should be enforced.

It is fair to question whether Mr. Gonzalez is a fit father, but in orderto deny his parental rights, it must be demonstrated that Mr. Gonzalez isunfit. To my knowledge, no one has even attempted to do so. Indeed, allinvolved seem to agree that the evidence is that he is a loving and goodfather. The argument therefore shifts to the conditions under which JuanGonzalez 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 anyonewho is richer than a natural parent can wrest away from the parent the rightto raise his own child? Do we want courts to determine that the laws of aforeign state disqualify parents who live there from claiming their ownchildren? Should a court in Virginia determine that, for example,California has adopted unsound policies and therefore the court would notsend a six-year-old back to his father in California and instead awardcustody to a Virginia-based uncle?

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

Despite its pervasive socialist poverty, Cuba is not so poor that livingthere constitutes child abuse. So let's turn to the lack of basic rightsand freedoms. There is no doubt that Cuba's restrictions on personalliberty are bad, but so are the restrictions in many other parts of theworld where parents struggle to raise their children properly. Like Cuba,other countries have compulsory military conscription; they haverestrictions on freedom of speech; they have one-party rule; they havesecret police and government spies infiltrated throughout society. But evenadding those up does not reach the threshold required to determine that theconditions of parenting make the parent unfit. If the child were to bereturned to certain death, or to slavery, or to some similarly horriblefate, then the matter would be different. But as bad as it is, Cuba is notat 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 adictatorship forever.

Finally, there is the issue of whether Juan Miguel Gonzalez is speakingunder duress. Can we possibly know his real wishes? We do know that he hasexpressed a wish to have his son back. Whether this was uttered because offear of reprisal or true conviction is irrelevant. If the former, he mightnot be a courageous man. If the latter, he might even be a dedicatedCommunist. But neither lack of courage nor foolish ideas are sufficient todeny the rights of a parent or to deny the right of a child to be cared forby 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 and Derrick A. Max

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.